History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.918

v4.c63.918

An important question is how far the right of private defence of person or property was recognised by the dharmaśāstra works. This subject has partly been dealt with in H. of Dh. vol. II. pp. 148-151 in connection with an *ātatāyin* (a desperate man) who is an incendiary or a poisoner or is armed with a weapon, is a robber, one carrying away another's wife or seizing by force (a field). Although there is great diversity of views about killing a brāhmaṇa *ātatāyin*, there is no difference of opinion as to repelling with force culminating even in death an *ātatāyin* of any other caste. Gaut. VII. 25 allows even a brāhmaṇa to arm himself when his life is in danger.⁹⁴³ Baud. Dh. S. II.⁹⁴⁴ 2. 80, Manu VIII. 348-349 lay down that brāhmaṇas and vaiśyas may oppose with force when they are prevented from doing their religious duties by felons or when there are disturbances caused by invasion or the like, for saving their own lives, for preventing the seizure of their cows or other wealth or for protecting women or brāhmaṇas. The Mit.⁹⁴⁵ on Yāj. II. 286 remarks that these rules of Manu are applicable when there is no time to report to the king or when delay in opposing violence will mean loss or ruin. According to Kāt.⁹⁴⁶ (800) no blame attaches to a man who kills wicked men that are about to kill another, but when they have desisted from their attempt, they should be arrested and not killed. Aparārka (on Yāj. III. 227) remarks that persons are to be regarded as *ātatāyin* while they are about to set fire or to kill or they are in the act of setting fire or killing and the like, that where it is not possible to prevent them from doing what they intend to do except by killing them there only the texts allow killing; but that where it is possible to prevent them by merely wounding them with a weapon or stick, killing them would be an offence.⁹⁴⁷ Medhātithi947a on Manu VIII. 348 differs from this and allows the killing of a desperado even after he has carried out his purpose and not only when he is about to carry it out or is in the act of carrying it out. The view of the Mit. on Yāj. II. 21 is that one has a right to oppose and kill another in self-defence, in defence of women and other weak people, who cannot defend themselves against a murderous or violent attack and that even if a wrongdoer of the brāhmaṇa caste was killed in the exercise of such right there is no punishment at the hands of the king and the prāyaścitta (for killing a brāhmaṇa) is a light one. Similarly a man can kill with impunity animals having claws, horns or fangs or horses or elephants if they attack a person (Kāt. 805 q. by Sm. C. II. p. 316).