Imagine a couple, married for almost a decade spending a fruitful marital life but are continuously tauntedfor not having a child.Believe it or not, even though we still live in the 21st century, having a child to ensure the continuation of one’s family generation out of religious reasons, security in old age, and having a legal heir of the property are given ample importance. To add with, adoption is not usually considered a viable option thinking of the parents' lack of blood relationship with the child so adopted. Here comes the aspect of Surrogacy into picture. To suffice this issue the government even to an extent legalized commercial surrogacy, which gave an easy passage to the couples who are intending to become parents. One major motive for this commercialization was to increase medical tourism in India and it indeed did[i]. The fact that Indian surrogacy clinics charged a substantially less amount as compared to the ones in USA and Europe, the former saw a good amount of abroad crowd. The town of Anand in Gujarat even to an extent became the Surrogacy capital of India. Then with time surrogacy turned into a lucrative industry, which led to an increase in criminality. Poor families were the most affected by this. Lack of necessary items for sustaining life, forces individuals to prostrate themselves in front of wealthy people and their generous offers. In addition to this they were subjected to a number of ill treatments and also were exploited in a number of ways by either the middlemen/agents, or the hospital authorities.


Evolution: Giving Surrogacy a Legal Shape

Legalization of commercial surrogacy

The government approved commercial surrogacy in 2002. This allowed for the emergence of a tightly knit commercial network around surrogacy and its associated activities. The low cost of surrogacy in India made it possible for foreigners as well as Indian citizens to choose the procedure there.[ii] Numerous organizations emerged in response to the needs and demands of foreigners with inadequate awareness of how surrogacy was truly carried out. With time, the practice of surrogacy—which was once thought to be a way for childless couples to find happiness—turned out to be a nightmare for the poor surrogates.The behaviour gradually became demeaning to the point where it was compared to selling babies. Additionally, a variety of exploitative actions confused women's reproductive abilities, which were once thought to be holy.


Law Commission Report

Poverty was cited as one of the factors contributing to the oversaturation of foreigners looking for surrogate mothers in India. The population's lack of revenue or reduced income, forces them to turn to offering these kinds of services. The emotional and physical suffering of the women participating in this is entirely disregarded while the impoverished households view this as a decent source of revenue. Therefore, the 228th Law Commission Report called for altruistic surrogacy to take the role of commercial surrogacy.[iii]


ICMR Guidelines

The ICMR declared in its recommendations in 2005 that the surrogate mother must be paid for the function she was doing in intended to facilitate the surrogate mother's condition and benefit her. Additionally, they stated that the intended parents should provide the gametes and that no surrogate mother should ever use her own eggs to facilitate fertilization.This, in my opinion, was even more exploitative in character since, in doing so, more and more women would be compelled by their own families to become surrogates, and their physical and mental health issues would be disregarded in favor of a significant financial gain. The male household members won't want to work since they will see it as an easy way to make money. Additionally, the woman's health will suffer if she repeatedly offers to serve as a surrogate.[iv]


Surrogacy(Regulation) Act, 2021

In July 2019, the Lower House approved the Surrogacy (Regulation) Bill, 2019. The legislation governs surrogacy as a procedure in which a woman bears a child for another person with the purpose of later giving the child to the intended parents. The law as it is now written forbids commercial surrogacy but permits charitable surrogacy or altruistic surrogacy. Apart from covering her pregnancy-related healthcare bills and insurance, the surrogate mother in an altruistic surrogacy is not paid financially. Commercial surrogacy refers to surrogacy or associated treatments carried out for a financial advantage or incentive over and above the required insurance and basic medical costs.[v]



Cases: A Driving Force for the Government to Bring upon changes


Baby Manji Yamada v. Union of India

A Japanese couple travelled to India to get surrogacy. The intended parents' kid was being carried by the surrogate mother after all the necessary surrogacy procedures had been done. The kid's parents split just one month before the baby was due, which put the unborn infant in trouble. Despite the fact that the father intended to transfer the child to Japan, there was no law in place to handle this kind of circumstance. To make matters worse, not even the Japanese government allowed to bring the newborn home. The infant was finally permitted to move out of the country and move to Japan with her grandmother possibly after the interference of the Supreme Court.

Some other factors that contributed to India's rise in surrogacy's relevance was the Yamada case, which made the country's surrogacy industry highly alluring to foreigners and promoted medical travel.[vi]


Jan Balaz v. Anand Municipality

In a situation where a child is born via surrogacy, the  Apex Court of Gujarat ruled that the surrogate mother's name will  appear on the birth certificate against biological mother, and in the event that the surrogate mother was carrying the child of a non - resident or foreign couple (in this case, a German couple), in that case, he or she will be given an Indian passport in order to certify him or her as an Indian citizen. Now, if the biological parents wish to take the kid back to their own country, they will have to adopt the child from the surrogate mother. This case caused the Supreme Court to request that the Parliament establish specific laws in this regard.[vii]

In my assessment, the Gujarat High Court's decision was very untrustworthy and had the potential to cause confusion and complete disdain for earlier advice. Since the surrogate mother isn't using her own eggs to carry the kid, the ICMR declared in its recommendations from 2005 that she shouldn't have even the slightest control over the child born through surrogacy. The surrogate mother will have to relinquish the child she carried after the delivery. The decision of how to proceed with returning the kid to their native country should instead be made by the biological parents, who have donated their gametes.Furthermore, if it is stated that the child had to be adopted, this clause will encourage a number of unethical actions on the part of the surrogate mother's family members who will try to extract money from the biological parents in order to place the child for adoption. This will happen outside the reach of the law and in secret from the authorities. This would leave the surrogate mother vulnerable to significant exploitation, even if she is innocent.


 What is the procedure for a couple to avail Surrogacy

As per the laws concerning surrogacy in the present times, no foreign couple can avail for surrogacy in India rather they cannot avail the services of any woman as a surrogate who is an Indian citizen.In India, surrogacy is only legal when the intended parents are confirmed infertile and have no other option except to use a surrogate to carry on the family line. Making sure that the child so created through surrogacy is not exploited for sale, prostitution, or other types of exploitation is one of the numerous requirements that the government monitors.In order to be eligible for surrogacy, intending couples must possess two certificates: a Certificate of Essentiality and a Certificate of Eligibility.


Certificate of Essentiality

The district medical board must declare them to be infertile, either both of them or at least one of them, in order for them to receive the certificate of essentiality. In order to cover the postpartum birth problems, the surrogate mother must have insurance coverage for a minimum of 16 months. A paternity and custody order for the surrogate kid must be issued by the magistrate court.[viii]


Certificate of Eligibility

For the intending parents:

Prior to the implementation of the Surrogacy Regulation Bill, foreign couples could use the surrogacy services of Indian women, who would carry their kid for nine months, but this is not the case at the current time. The intended parents must be citizens of India and have completed five years of active marital life. Another provision of this statute sets the age of the intended parents as being between 23 and 50 for the wife and 26 to 55 for the husband.Additionally, this rule states that the intended parents should not already have a son or daughter. In my opinion, this is appropriate and important since when a couple already has a kid, they are more likely to focus on and provide for their first child, neglecting the surrogate child. However, there are a few exceptions. For example, if the already-born kid has a physical or mental disability or is afflicted with a condition that poses a serious risk to their life, they may be able to use a surrogate and be approved for it.


For the Surrogate Mother:

Any woman could serve as a surrogate mother for a fee when commercial surrogacy was an accepted practise and had not yet been banned. In to get a surrogate in order to obtain a kid, it was all a game of negotiation. This is not the case in the current situation since a surrogate mother must have a relationship with the intended parents and cannot be an outsider or an alien in order to bear a child for them. The chosen surrogate must be married and have her own biological kid or even adopted child. In my opinion this is a valid stand, as any woman who is carrying a child for 9 months, it is obvious for her to get emotionally attached with that child, in this situation if the surrogate mother is already a mother of a child then in that case  she would refrain herself from getting physically attached with the surrogate child, thus not hampering her mental health post- delivery. In order to prevent any situation of exploitation, a woman is allowed to become a surrogate mother only one in her life. She has to be in good physical and mental health to be a surrogate mother.[ix]



Surrogacy is considered and is believed to be an active practice in India but only altruistic surrogacy, as undertaking commercial surrogacy is now considered as an offence. If the surrogate child is abandoned by his/her intending parents or if the child is exploited in any way then in that case the court can award an imprisonment of 10 years or fine up to 10 lakhs. Even though the new legislation aims to benefit all the parties involved in the surrogacy procedure both mentally and physically but it is discriminatory in some sense. It does not allow couples belonging to the LGBTQIA community, single male parents and live in couples to go for surrogacy. When on one side it is justified for not giving live in couples the authority to go for surrogacy, as they are very vulnerable to getting separated in the near future as there is no legislation governing live in relations, but it is quite discriminatory on the part of the other two.

This Blog is authored by Ritesh Dandapat, Student of Symbiosis Law School, Noida

[i]India Surrogacy Boom Gives Birth to Parenthood for Foreign Couples, Medical Tourism Magazine  (July 5, 2022, 11:30 a.m.),

[ii]EeshanSonak, Sanvi Bhatia, India’s new Surrogacy Regulation Bill falls short of protecting bodily autonomy and guaranteeing reproductive liberty, LSE Human Rights Blog (July 5 2022, 11:40 a.m.),,a%20hub%20for%20transnational%20surrogacy

[v]The Surrogacy (Regulation) Act, 2021, No. 47 of 2021, Acts of Parliament, 2021(India)

[vi]Baby Manji Yamada v. Union of India, WRIT PETITION (C ) No. 369 of 2008

[vii]Jan Balaz v. Anand Municipality, AIR 2010 Guj 21



A technology that utilizes biological approaches, a part or whole of living organisms to generate or concoct different products is called Biotechnology. It is the usage of biological processes for several industrial purposes and for the production of antibiotics, hormones, and so on. The most apparent techniques used are genetic engineering and the genetic manipulation of microorganisms. Biotechnological technology is not new to human beings and is important in advancing human development. It has advanced immensely in the lapse of time. This technology achieved considerable engagement after the disclosure of the arrangement of the DNA molecule and thus formed the basis of modern biotechnology. This branch of science comes with its own set of predicaments and all these predicaments become more relevant when considered from the aspect of patenting. However, the range of biotechnology patents varies from one country to another. Countries have adopted a number of strategies with respect to biotechnology patents in concurrence with their national policies to resolve the inherent morality issues and whether such biotechnology patents should be granted and if they are being granted what should be the conditions for the same. These deviations among governments are important for the proper interpretation of the tendencies in biotech patents. This article helps one understand the difference between the trends and the practices relating to biotechnology patents in the USA and India. The USA blazed a trail in the field of biotechnology research and paved a way for other countries to get influenced and follow the trend further. However, India represents the concerns of developing countries.




The Indian Patent Laws have been amended three times till now to make its provisions comply with the TRIPS Agreement. The laudatory stands taken by the Indian judiciary, the recent amendments and the strict compliance of the laws have improved the spectrum of biotechnological patenting and have to some extent dismissed the precariousness over the filing of biotechnological patents. In India, the chief authority for the grant of patents and designs is the Office of Controller General of Patents and Designs. With the development of the patent industry in India, the latter admitted the need to improve the spectrum of biotechnological patents by administering guidelines and formulating new laws specifically while dealing with biotechnological patents. The main instructions laid down for the determination of biotechnological patents included Prior Art Search, Novelty, Inventive Step, and Industrial Application. The first step towards evaluating patentability rights over a creation is the patentable subject matter requirement.

In India, an outcome or a process is deemed a suitable matter irrespective of technology. Inventions related to living entities, corporal organisms, or other substances having duplicating effects and genetically altered multi-cellular organisms are disallowed by the Indian Patent Act. However, patents for biochemical, biotechnological, gene arrangements, and DNA arrangements are allowed under a patentable subject matter. The provisions relating to the grant of a patent on biotechnological inventions include the involvement of an inventive step and industrial applicability. There must be a method of executing the creation, transparency, conformity of invention, pithiness, and license of the claims. Non Patentable Subject Matter includes inventions that oppose the ethics of nature essentially biological processes. They must cause serious discrimination against human health and the environment. Mere discovery of a living thing or non-living substance occurring in nature or any new use of the same does not constitute patentability.

Various biological methods such as recombinant DNA and plasmids can be granted patents provided these shall have human interventions. The utility requirement criterion is satisfied if the functions of the gene arrangements and DNA arrangements are disclosed as per the Manual of Patent Procedure.

The Indian Judiciary significantly interpreted the appropriate conditions of the Patent Act by instilling biotechnological patents. In ‘Dominica AG v. Controller of Patents and Designs 2002’, the judgment given by the Honorable High Court of Calcutta is quite noteworthy in Indian Patent History. It was the first time in India that an asserted process that contained living microorganisms in the outcome was permitted a patent. In this case, the Controller of Patents and Designs refused a patent for a live vaccine protecting poultry against Bursitis infection. The ground for refusal of the patent expressed that the vaccine involved the processing of microorganisms and contained gene arrangements. It was also found that the claimed process did not intend to manufacture anything new, instead, it was just a biological procedure. However, the esteemed court overturned the previous ruling stating that a unique and practical process leading to the manufacture of a new article where the new product contains living organisms is termed an invention. Further, no appeal was made to the Supreme Court of India and this verdict is supposed to play an influential position on the subject matter in the near future. 




Any invention which includes process, the machine, manufacture, or composition of matter is considered an elective subject in the USA. The non-patentable inventions created by the judiciary in the USA include Abstract Ideas, Physical Phenomena, and Laws of Nature. 'Law of Nature' is an exclusion pertaining to biotechnology inventions. Anything which is a product of nature is excluded from being patented. The elective subject must fulfill the criteria of utility. An invention for the grant of a patent should be precise, consequential, and plausible from the viewpoint of an ordinary man. The requirements in the USA for the novelty clause are not given much importance and are not looked upon much. The non-obvious standards are not applied uniformly and are considered to be low in terms of biotechnological inventions. The inventive step for biotechnological inventions has been interpreted differently when compared to generally accepted norms.

The case of ‘Funk Bros. Seed Co. v. Kalo Inoculant Co.’ was the first to solve the question regarding patentable subjects in the USA. The court held that there needs to be something more than agglomeration of species for the invention to be considered for patenting. Since there wasn't any form of a new bacterium formed in the process, the said invention was held non-patentable. Further, in the judgment of ‘Diamond v. Chakarbarty’, the Honorable Supreme Court went against the decision of the United States Patent and Trademarks Office (USPTO) and encouraged the upsurge in the spectrum of biotechnology by stating that anything and everything made by a man will be considered as patentable. The USPTO had previously stated that the Pseudomonas bacterium was not manmade and had no interference by man, instead, it naturally occurred in nature and possesses life. The Supreme Court held that 'the bacterium was patentable'. It was held that although the bacterium had occurred in nature in the past, it was new and had completely new and unique features. The Apex Court's verdict allowed a patent on isolated gene sequences. In the USA, gene arrangements, as well as gene therapies, were incorporated as patentable subject matter. The USA has a very wide range with regard to patentable subjects, though, 'human beings are not one of those. In ‘Mayo v. Prometheus’, the court struck down the patent claims by Prometheus on the method of metabolite levels in the body to thiopurine drugs for stomach disorders. With time passing by, several judgments were delivered and each of them set varying opinions on the patentability of biotechnological inventions creating confusion. The court held that the isolated human genetic arrangements were non-patentable in the case ‘Association of Molecular Pathology v. Myriad Genetics. This judgment created a serious conundrum concerning previously delivered judgments regarding the grant of patents in the USA. However, the court held that a gene patent application covering nucleic acid chemically different from naturally occurring is still patentable. This case brought into question the admissibility of gene patents and attracted mass attention towards itself.




Biotechnology patenting has undoubtedly bore fruitful results for human society by boosting the manufacture of various vaccines, drugs, medicines, and so on accelerating the pace of treatment of deadly diseases like cancer, AIDs, Tuberculosis, Malaria, etc. Biotechnology has led to a promising future for various nations including India to combat various deadly infections and diseases. The only concern is the legal and ethical concerns of patenting. There needs to be amicable addressing of patenting and monetizing of such inventions. It is relevant to note that there is a vast dissimilarity between the biotechnology patent laws in India and in the USA. The year 2002 marked the recognition of the patent of biotechnology in India whereas developed countries like the USA knew about the concept of Protection of Biotechnology since the '80s thereby giving an upper hand to the developed nations. When it comes to patenting biotechnology, India applies a very strict approach whereas the USA shows lenience and is very liberal towards it. There is a notable difference between the two approaches, however, one concurrence between the jurisdictions of both countries is that both disallow biotechnology patents that are in any way related to the human body. The concept of Biotechnology Patent is new to India as compared to the USA where it has been in practice for quite some time now. However, the Indian Patent laws in the Biotechnology sector are showing progressive growth with leaps and bounds.




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Compared to the old Companies Act, which had any explicit CSR-related regulations, the new Company Law of 2013 provides remarks about the importance of corporate social responsibility (CSR) that are more explicit. Since the Companies Act 2013 (the Act) was put into effect by the Ministry of Corporate Affairs of the Government of India, CSR has been made a necessary requirement, establishing legal obligations on certain businesses to engage in CSR efforts for social welfare activities. India has become the first country to regulate and enforce CSR activities for a specific group of enterprises registered under the aforementioned law after putting into effect this new legislation. The main purpose of CSR was to encourage people to work together with the public and commercial sectors to improve India. Section 135 of the Companies Act, 2013, and the Rules promulgated thereunder, which provide requirements for evaluating a company's CSR eligibility, execution, and properly reporting its CSR Policies, regulate corporate social responsibility in India. India has taken the initial steps toward setting a benchmark in accomplishing sustainability goals and stakeholder engagement in nation-building with one of the most thorough CSR frameworks and implementation techniques.


A company's continual commitment to include social and environmental challenges in its operations is known as corporate social responsibility. India was the first country to make CSR a legal mandate on April 1, 2014.


Social responsibility in the workplace

Increased social responsibility and a positive impact on society are the goals of business social responsibility, a kind of corporate self-regulation. A company may choose to embrace CSR in a number of different ways, including by being sustainable and environmentally friendly, promoting equality, diversity, and inclusion at work, treating employees with respect, giving back to the community, and making sure business decisions are moral. A management principle known as "corporate social responsibility" pushes companies to integrate social and environmental concerns into their everyday operations and interactions with its stakeholders. When a corporation strikes a balance between its economic, environmental, and social imperatives, it is said to be practicing CSR. It is crucial to separate CSR from philanthropy, sponsorships, and charity contributions in this context since it may be a strategic corporate management notion. The latter may significantly reduce poverty and boost a company's reputation and brand more rapidly, but the concept of CSR clearly goes beyond that.


The Ministry of Corporate Affairs adopted the Companies (Corporate Social Responsibility Policy) Amendment Rules, 2021 (the "CSR Rules") on January 22. (MCA). The CSR Rules aim to encourage the transparency and disclosure of CSR activities. These changes to the CSR Rules have been suggested to ensure strict adherence to the requirements of the aforementioned regulations and to stop businesses from abusing CSR funding. The modifications have produced the key findings listed below:


1. A change in the phrase's meaning ("CSR")

The CSR Rules have amended the definition of CSR to explicitly state that acts taken in the normal course of a company's operations shall not be included under the definition of CSR in light of the current pandemic situation. The CSR Rules have made an exception, stating that companies engaged in the research and development of new drugs, vaccines, and medical devices in the course of their regular business may engage in such activities related to Covid-19 and that they shall fall under the scope of CSR subject to certain conditions as specified in Rule 2(d)(i) of the Corporate social Responsibility Rules. This exception is for the fiscal years 2020-2021, 2021-2022, and 2022-2023.


According to the CSR Rules, the following actions are not CSR:

a.     any activity carried out by the company outside of India, except the coaching of Indian athletes who represent any State or Union Territory in national or international competition;

b.     Any kind of financial support, whether direct or indirect, provided to a political party in compliance with Section 182 of the Companies Act of 2013 (the "Companies Act");

c.      Activities that are helpful to the firm's employees and comply with Section 2(k) of the 2019 Wage Code;

d.     Initiatives that businesses back in order to market their products or services more effectively; or

e.      Any actions taken to comply with any additional legal obligations imposed by any applicable Indian legislation.


2. Putting CSR Policy in Place

The CSR Rules permit the creation of an altogether new standard for CSR implementation, in contrast to the previous laws. According to the CSR Rules, a company may engage in CSR activities directly or through an entity that is incorporated under Section 8 of the Companies Act, a registered public trust, or a registered society registered under Sections 12A and 80G of the Income Tax Act, 1961, so long as the entity has been in existence for at least three (three) years and was founded by the company alone, jointly with another company, or by the Central or State Government. It also holds true for every company established by a federal or provincial statute.

It's important to keep in mind that any company interested in participating in CSR activities must register with the Central Government by submitting Form CSR-1 electronically to the Registrar of Companies through the MCA website. After completing the form on the MCA website, the business will get a special CSR registration number that it may use going forward.

According to the CSR Rules, the Board of Directors of the firm ("Board") is required to supervise and carry out CSR activities in accordance with project timelines in order to ensure that funds designated for CSR are only used for the permitted purposes. A company may collaborate with other groups to create, lead, and execute CSR projects or programs in line with its policy in addition to the aforementioned options. The Board should make available on its website, if any, the membership of the CSR Committee, the CSR Policy, and any initiatives that are accessible to the public.


3. The duties of the CSR Committee

In line with the organization's CSR policy, the CSR committee is required to create and submit an action plan to the Board once a year. The action plan must include a list of CSR projects or programs that have been approved for implementation in the areas or subjects listed in Schedule VII of the Companies Act, as well as information on how they will be carried out, how funds will be used, when they will be implemented, a system for monitoring and reporting the projects or programs, and, if applicable, details on need and impact assessments.

Additionally, the CSR Rule allows the Board the authority to modify the annual action plan in accordance with recommendations given by the CSR Committee and based on a sound justification.


4. Spending on CSR

The extent of how Rule 7 of the existing laws relates to CSR money and expenditure has been widened by the CSR Regulations. The company requests the Board to ensure that administrative expenses do not total more than 5% (five percent) of all CSR expenditures for the fiscal year in order to prevent the business from incurring unauthorized charges for CSR.

The CSR rule also mandates that any surplus funds from CSR activities must be reinvested in the same CSR project, transferred to the Unspent CSR Account and used in accordance with the CSR policy, or transferred to one of the funds listed in Schedule VII of the Companies Act within 6 (six) months of the fiscal year's end. Information on these funds must be included in Schedule VII of the Companies Act.

The CSR Rules also permit businesses to deduct excess CSR expenses that exceed the permitted 2% (two percent) in any fiscal year for the following three (three) fiscal years, provided that the company's board of directors approves a resolution stating that the aforementioned excess amount is distinct from any surplus attributable to CSR activities.


5. Creating or Purchasing Capital Assets with a CSR Fund

Companies may now purchase or create capital assets that they will own using CSR funds in the methods that are outlined below:

a.      section 8 company under the Companies Act's definition;

b.     a recognized public trust or organization having charitable objectives;

c.      any beneficiary of a CSR initiative (including self-help groups, organizations, collectives, or other entities); and government representatives

Despite the above, the Board must ensure that any capital asset produced by the Company prior to the approval of the CSR Rules is transferred to one of the aforementioned organizations within 180 (one hundred eighty) days of the effective date of the CSR Rules. The Board may extend its 180 (one hundred eighty) day period for a maximum of 90 (ninety) days if there is good cause.


6. Adherence to CSR principles

According to the CSR Rules, the reporting process for CSR has been changed to require the production of an annual CSR report that, when needed, includes the data outlined in Annexures I and II of the CSR Rules. The CSR Rules indicate that the balance statement that foreign enterprises are required to submit to the Registrar in line with Section 381(1)(b) of the Companies Act must contain the annual report on CSR.


Additionally, the CSR Rules mandate that impact evaluations be conducted on CSR projects with a budget of INR 1,000,000 for any company having an average CSR obligation of INR 10,00,00,000 (Indian Rupees Ten Crores) or more (Indian Rupees One Crore). The impartial organization will evaluate the project's effects a year after it is finished. The impact assessment report must be submitted to the Board for approval together with the annual CSR report.


Additionally, a corporation that conducts impact assessments may deduct the cost of an impact assessment up to INR 50,00,000 (Indian Rupees Fifty Lakhs) or 5% (five percent) of all CSR expenditures, whichever is less. When paying for impact studies, the company is prohibited from incurring administrative expenditures under CSR Rules Rule 2. (1). (d).



The CSR Rules state that India will soon have a more advanced system of corporate social responsibility that is compatible with sustainability and the concept's normativity. Compared to the current CSR laws, it provides a system that is clearer and more structured. The amendment's approach is to improve the company's duty and accountability. On firms who participate in CSR initiatives, the shift is predicted to have a significant impact.


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The concept of private defence was introduced by McAulay 150 years ago so as to give the citizens the right to protect oneself when they cannot seek help or there is immediate threat or danger. It states that everyone has the right to defend their lives and property. It gives people the ability to use defensive force to protect ourselves, even if it means causing death in some cases. This section is defined in chapter IV of IPC. Jeremy Bentham also believed that ‘the necessity of private defence is unavoidable. The magistrate’s vigilance will never ever be able to compensate for the personal alertness of each individual. the fear of the law may not be as effective as the fear of collective resistance in restraining a wicked individual if you take this right away, you become co-conspirator of all the terrible men[1]

This right is available-

a)     against the aggressor

b)     If there is an apprehension of sudden harm

Private defence and its nature

Right of private defence is given to every citizen of India so as to imbibe in them the duty of self-help. Indian law also curtails some limitation while exercising this right. For e.g.- if one has sufficient and reasonable time to approach the police authorities, the right of private defence is not available in this case. However, if the actresults into real, reasonable and sudden apprehension the act done in furtherance of the unlawful act no matter how intense it is will not be considered as a criminal activity. Also, any unlawful act done in the furtherance of self-defence will not be considered as crime, and any activity in return to that will be outside the ambit of private defence.


Framework legislation

Section 96-106

The scope and the limitations of right to private defence has been mentioned in Indian penal code from section 96 to 106

Section 96 states that “anything done in the exercise of right of private defence does not constitutes an offence”. whereas section 97 defines that Every person has a right to defend

a. His or her own body, as well as the body of the other, against any crime involving the human body.

b. ‘The property of himself or any other person whether movable or immovable against any act which is a robbery, theft, criminal trespass or mischief or an attempt to robbery, theft, criminal trespass, or mischief [2]and section 99 establishes a number of conditions where in the right of private defence’ cannot be exercised

1.though any conduct is done by public official in good conscience and during the course of his duty, even if it is illegal

2. If one has enough time to get in touch with the public authorities.

3. The harm caused should not be more than what is necessary.

 Section 101, 103 and 104 defines the extent to which harm can be done in the right to private defence other than death. Section 102 and 105 denotes the beginning and continuation of right to private defence.[3]Apart from that section 98 states that private defence is accessible against those who are not mature enough to understand the repercussions of their act owing to their insanity or incompetence. Section 106 states if there is any apprehension of sudden harm and one cannot protect themselves without harming an innocent person then he is pardoned by law under this section to do that.



Darshan Singh vs the State of Punjab[4]

The case is between very intimate and closed family members who were having a tussle over a piece of land. Thusthe supreme court of India gave their reasoning on the scope to exercise to practice right of private defence under certain guidelines which were

1)     Self- defence or right to self-preservation is a fundamental human right given by the state to its citizens to protect oneself

2)     When there is a sudden fear of impending injury, private defence is accessible. A justifiable suspicision of death or threat is also enough to act in the direction of private defence.

3)     when there is reasonable suspicion, private defence enters into the picture and stays for the duration

4)     The force used by the defender against the assailant should be proportionate to the harm or the apprehension caused by him

5)     Private defence is accessible under Indian penal code when unlawful act is a crime under Indian penal code.

6)     In order to preserve himself from any imminent danger, a person can commit any harm including death while excercising his right to self- defence

Apart from this cases like in Nand Kishore Lal vs emperor[5]and Mithu Pandey vs state of punjab[6] laid the fact that private defence can extend to causing death

In cases like Mohinder pal jolly vs the state of Punjab[7], it was stated that it is now lawful to use one’s right to private defence until there is a justifiable fear of death.

Analysis of Present legal scenario

In the present legal scenario, private defence is often misused by the people for taking revenge with malafide intent. Misuse of this right also leads to the use of the concept of “Ubi jus ibiremedium” which promises remedy for damages. The misuse of this right also overrules the “ reasonable force” that is to be used when there is imminent harm and danger. The same was observed in the case of magunicharan Pradhan Vs State of Orrisa [8]where the defendant was accused of the murder of bikhari Pradhan with an axe who trespassed his land,  the wrong doer was convicted but the high court reversed the  previous verdict by saying that when there is sufficient time to take assistance of the public authority,private defence is not attainable and accessible and held that there was no imminent threat or apprehension and there was no need for the defendant to act outside the reasonability. Also there was no sudden provocation thus the defendantwas held liable. One such case where this right was misused was in case of Vishwanath vs State of UP [9]where a husband tried to abduct his wife, wife’s brother in order to protect her stabbed him causing his immediate death, the judgement was delivered in the favour of the murderer and he was acquitted under sec 99 of Indian penal code. This case gives an insight that how right of private defence is misused. IPC does not define private defence clearly, it is based on past judgements and recent precedents which governs this section in Indian penal code. Although it has some limitations but it is used as a license to kill someone who act against us. Thus it is important for us to abide by the guidelines laid down by the laws and do not surpass it. It is equally important for the judicial authorities to specify the definition private defence and to mitigate its ambiguous nature



The right of private defence is given to every citizen of INDIA and it is the basic and intrinsic aim of self-preservation. It is also the duty of the citizens to protect themselves. This right is available if there is an apprehension of immediate harm and threat. This right is embraced as it also extends the right to even cause death even if there is sudden apprehension of rape, abduction, and murder. This section in IPC defined in a logical and substantiative manner as with providing certain rights, it is subjected to some restrictions. E.g. the force used should be in proportionate to the inflicted harm.If the right of self-defense is exercised under a mistaken belief, it is pardoned by law but it should be reasonable. It also marks a demarcation between offence and self-defence. It is also a part of protective rights

As a developed and civilized state, it is always expected from a state to protect its citizen but we tend to forget that with a huge population and with limited edible human resources, the state can't extend help everywhere that is the reason, we are given this right so that we protect ourselves when there is an imminent threat and danger. If used in right manner, this right can prove to beneficial in enforcing the true meaning of self-preservation.


[3]P.S.A Pillai, Criminal law, 132  (12th ed, 2014)

[4]Darshan Singh vs State of Punjab AIR 1993 SC 970

[5]Nand Kishore Lal vs emperor AIR 1927 All 710

[6]Mithupandey vs state of Punjab AIR 1983 SCC277

[7]Mohinder pal jolly v the  Stateof Punjab AIR 1979 S.C. 577

[8]Maguni Chandra Pradhan vs State of orrisaAIR 1991 INSC 90

[9] Vishwanath vs state of UP AIR 1960 SC 67 

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