The Telegraph
Since 1st March, 1999
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Legal shield for bandh self-defence

New Delhi, Dec. 17: Upholding the right to self-defence, the Supreme Court today acquitted two persons who fired on a mob that attacked them for keeping their factory open on a bandh day and directed governments to control with an “iron hand” such “hooliganism” during strikes.

“Any soft or lenient approach for such offenders would be an affront to (the) rule of law and challenge to public order and peace,” a division bench of Justices Doraiswamy Raju and Arijit Passayat said.

The stern words boomed out as the judges cleared Xavier Martin and his son James of murder charges on the ground that they opened fire after some strikers attacked them for not closing their bread factory in a suburb of Kochi town in Kerala. The incident occurred during a Bharat bandh on March 15, 1998.

The court said there is legal sanctity for an action of self-defence that even results in death because the “right of private defence is a recognised right” which “should not be construed narrowly”.

“Right of private defence is essentially a defensive right circumscribed by the governing statute, the IPC (Indian Penal Code), available when the circumstances clearly justify it,” the bench said.

However, the burden of proof that a person killed another in self-defence lies with the one who killed. The judges said he or she has to prove that the situation warranted such an extreme step.

“It (right to self-defence) should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence,” the judges said. “It is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure.”

“Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny,” the judges observed.

On the question whether more force was used than was necessary, the bench said a person facing “a reasonable apprehension of threat to himself” cannot be expected to modulate his defence step by step with “arithmetical exactitude”.

Coming down hard on “hooliganism” during strikes, the judges said no one, “in the name of hartal or bandh or strike”, has the right to “cause inconvenience to any other person or to cause in any manner a threat or apprehension of risk to life, liberty, property of any citizen”.

The bench observed that it was “high time” the authorities took “stringent steps” to deal with those who destroy public property in the name of strikes.

“All the more so when the days are such where even law enforcing authorities and those in power also precipitate to gain political advantage at the risk and cost of their opponents. Unless such acts are controlled with iron hands, innocent citizens are bound to suffer and they shall be the victims of high-handed acts of some fanatics with queer notions of democracy and freedom of speech or association,” the bench said.

On political parties organising such bandhs, the bench said “the question whether bandh or hartal or strike has any legal sanctity is of little consequence in such matters”.

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