Introduction of BNS 38
BNS 38 is one of the most crucial provisions because it deals with situations where the right of private defence of the body may extend to causing death. This section recognizes that while the law generally discourages taking another person’s life, there are exceptional cases where a person may have no other option but to act in extreme defence.
In simple terms, BNS 38 empowers individuals to protect themselves or others from life-threatening assaults, even if such defence unintentionally causes the death of the attacker. However, this right is not unlimited; it is applicable only in cases of grievous danger such as assault with deadly weapons, attempt to murder, rape, kidnapping, or similar heinous offences. This section strikes a balance between personal safety and legal accountability, ensuring that the right of self-defence is not misused.
The Bharatiya Nyaya Sanhita (BNS) Section 38 replaces the old Indian Penal Code (IPC) Section 100 .
What is section 38 of BNS ?
BNS Section 38 lets you use deadly force to protect yourself if someone attacks you in a way that makes you fear for your life or causes serious harm. This includes situations like attempted murder, severe assault, rape, and other serious crimes.
BNS Section 38 in Simple Points
“The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, 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:—
(1) such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
(2) such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
(3) an assault with the intention of committing rape;
(4) an assault with the intention of gratifying unnatural lust;
(5) an assault with the intention of kidnapping or abducting;
(6) 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.”
(This corresponds to IPC Section 100, updated under BNS Section 38, 2023.)
1. Meaning of Section 38
BNS Section 38 allows a person to use their right of private defence to the extent of causing death of the assailant, but only under very serious circumstances. Normally, the right of defence is limited to preventing harm. But when the attack is life-threatening, involves grievous hurt, rape, kidnapping, or confinement, the law recognizes that extreme force may be necessary.
2. Purpose of Section 38
- To protect individuals from grave and violent crimes.
- To allow citizens to defend their life, liberty, and bodily integrity even if it results in the attacker’s death.
- To create a balance between protection of innocent people and prevention of misuse of self-defence.
3. Essential Ingredients of Section 38
For the right to extend up to causing death, these conditions must be satisfied:
- Existence of imminent danger – The assault must create fear of death or grievous hurt.
- Type of assault – Includes attempts of murder, grievous hurt, rape, unnatural lust, kidnapping, or wrongful confinement.
- Proportional response – The defensive act must match the severity of the threat, not exceed it unnecessarily.
- Good faith action – The defender must act honestly to save themselves or others, not for revenge.
4. Punishment & Liability under Section 38
- If the defensive act falls within Section 38, the person is not criminally liable even if the assailant dies.
- If the act goes beyond the scope (e.g., revenge killing, unnecessary force), the defender may be punished under homicide provisions.
5. Examples of BNS Section 38 in Action
- Example 1: A man attacks another with a knife aiming at his chest. The victim shoots the attacker in defence. → Protected under Section 38.
- Example 2: An assailant attempts rape; the woman stabs him fatally. → Protected under Section 38.
- Example 3: A person kidnaps a child. While rescuing, the guardian causes death of kidnapper. → Protected under Section 38.
- Example 4: A slap in an argument is met with killing. → Not protected (not grave enough).
6. Importance of BNS Section 38
- Ensures citizens are not helpless against deadly assaults.
- Protects women and children against crimes like rape and kidnapping.
- Aligns with IPC Section 100, but updated with clearer wording under the new law.
- Reinforces that self-defence is a right, not a crime, when exercised within lawful limits.
Section 38 BNS Overview
BNSS Section 38 allows a person to defend themselves or others by using necessary force, even to the point of causing death, but only in certain grave and dangerous situations. These include fear of death, grievous injury, attempted rape, kidnapping, wrongful confinement, acid attacks, and other severe assaults. The law ensures that no one is punished for defending themselves in extreme circumstances, as long as the threat is immediate, real, and serious.
1. Fear of Death
Explanation: If someone attacks you in a way that creates a reasonable fear of losing your life, you are justified in defending yourself, even if it results in the attacker’s death.
Example: If an armed assailant points a knife at your chest, you can use deadly force to stop them.
2. Fear of Serious Injury
Explanation: If the assault could cause grievous harm—like permanent disability, broken bones, or loss of vital functions—you can defend yourself to the extent of causing death.
Example: If someone swings a heavy iron rod at your head, you may strike back with deadly force to protect yourself.
3. Attempted Rape
Explanation: The law protects victims from sexual violence by allowing them to defend themselves with full force, including deadly force.
Example: If an attacker tries to commit rape, the victim can lawfully injure or even kill the attacker in self-defense.
4. Assault with Unnatural Lust
Explanation: If a person tries to force unnatural sexual acts, the victim can protect themselves by any means, including deadly force.
Example: If someone attempts to molest you with unnatural sexual intent, you are justified in using deadly force to resist.
5. Kidnapping or Abduction
Explanation: The right of private defense extends to resisting kidnapping or abduction. If someone tries to take you away forcefully, you may lawfully cause their death in defense.
Example: If kidnappers attempt to drag you into a vehicle, you can use a weapon to stop them, even if it proves fatal.
6. Wrongful Confinement
Explanation: If you are confined in a way that prevents you from seeking lawful help, you can defend yourself with deadly force. This ensures that individuals are not left helpless in captivity.
Example: If someone locks you inside a room with no escape, you may attack them fatally to free yourself.
7. Acid Attack
Explanation: Acid attacks are treated as grave offenses because they can cause permanent disfigurement and death. The law allows victims to defend themselves with deadly force to stop such an attack.
Example: If someone is about to throw acid on you, you may use any means necessary—even lethal—to stop them.
8. Reasonable Cause
Explanation: The fear of harm must be reasonable. The right to cause death is not available for trivial or imaginary threats. Courts check whether the danger was genuine.
Example: You cannot stab someone to death just because they pushed you in anger.
9. Proportionality
Explanation: The force used must be proportionate to the threat. If the harm threatened is minor, deadly force is not justified.
Example: If someone slaps you during a quarrel, killing them in response cannot be claimed as self-defense.
10. Immediate Threat
Explanation: The danger must be real, immediate, and unavoidable. Once the threat has passed, you cannot retaliate and call it self-defense.
Example: If a person points a gun at you, you may act immediately—even fatally—to protect yourself. But if they drop the gun and flee, killing them afterwards is not justified.
Bharatiya Nyaya Sanhita Section 38
| Section | Provision | Scope | Exception | Practical Effect | Trial By |
|---|---|---|---|---|---|
| BNS Section 38 | Extends right of private defence of the body to causing death if assault creates reasonable fear of death, grievous hurt, rape, unnatural lust, kidnapping/abduction, or wrongful confinement preventing recourse to authorities. | Covers extreme situations where threat is life-threatening or involves heinous crimes like rape and abduction. | Defence must be proportional and exercised in good faith. Excessive or retaliatory force beyond necessity is not protected. | Provides legal immunity if defender causes death while resisting grave crimes. Protects victims from criminal liability. | Ordinary criminal courts, which assess whether the conditions of Section 38 were satisfied in each case. |
| IPC Section 100 (Old) | Similar provision granting right of private defence to the extent of causing death in cases of assault likely to cause death, grievous hurt, rape, unnatural lust, kidnapping, or wrongful confinement. | Almost identical scope, rooted in colonial IPC drafting. Broadly the same categories of grave assault as in BNS 38. | Same condition — only when imminent danger exists. Lesser assaults (like slaps or threats) do not justify lethal defence. | Provided a foundational rule of self-defence but worded in older legal language, less simplified than BNS version. | Cases were tried in criminal courts; courts determined if lethal self-defence was justified or excessive. |
BNS Section 38 FAQs
What does BNS Section 38 cover?
It covers when you can use deadly force in self-defense against serious threats such as imminent death, severe injury, or criminal actions.
Can I use deadly force if someone is trying to seriously injure me?
Yes, if there is a reasonable fear of severe injury, deadly force is allowed.
Is deadly force allowed if someone tries to kidnap me?
Yes, you can use deadly force if someone attacks with the intention to kidnap or abduct you.
What are the limits on using deadly force?
The use of deadly force must follow the restrictions outlined in Section 37. Ensure your response is appropriate to the threat.
Can I use deadly force if someone throws acid at me?
Yes, if the acid attack poses a serious threat of severe harm, you can use deadly force.
Conclusion
In conclusion, BNS Section 38 plays a vital role in safeguarding individual rights while maintaining social order. It ensures that a person does not become a victim while facing grave dangers such as murder attempts, rape, or deadly assaults, by legally allowing extreme measures in self-defence. However, this provision also serves as a reminder that the right of private defence is subject to strict limitations—it cannot be exercised out of revenge or disproportionate force.
By setting these clear boundaries, the law provides citizens with confidence to protect themselves while also ensuring that justice is not compromised. For students, legal practitioners, and citizens alike, understanding BNS Section 38 is essential to knowing how self-defence operates under Indian criminal law.
Need Legal Support?
If you are dealing with court cases, marriage problems, or any other legal issue, our team at Marriage Solution – Lawyer Help is here for you. Simply fill out our quick online enquiry form, and we’ll connect you with the right legal expert to support your needs.
Finished with BNS Section 37 ? Continue exploring the next provisions of the Bharatiya Nyaya Sanhita (BNS), 2023. Each section includes explanations, examples, and plain-language breakdowns for easy understanding..
BNS 39 : When such right extends to causing any harm other than death
https://marriagesolution.in/bns_section/bns-39/
BNS 40 : Commencement and continuance of the right of private defence of the body
https://marriagesolution.in/bns_section/bns-40/
BNS 41 : When the right of private defence of property extends to causing death
https://marriagesolution.in/bns_section/bns-41/
BNS 42 : When such right extends to causing any harm other than death
https://marriagesolution.in/bns_section/bns-42/
BNS 43 : Commencement and continuance of the right of private defence of property
https://marriagesolution.in/bns_section/bns-43/
BNS 44 : Right of private defence against deadly assault when there is risk of harm to innocent person
https://marriagesolution.in/bns_section/bns-44/
- All Indian Law & Blogs: https://marriagesolution.in/indian-law/
- Full BNSS Section List: https://marriagesolution.in/bnss_section-list
- Full IPC Section List: https://marriagesolution.in/ipc-section-list