Tuesday, February 5, 2013
Cheah Wui Ling (National University of Singapore - Faculty of Law) has posted Private Defence (Wing-Cheong Chan, Barry Wright & Stanley Yeo (eds), Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Recform (Ashgate 2011)) on SSRN. Here is the abstract:
This chapter examines the right to private defence in the Indian Penal Code (IPC) using a historical lens and argues for its legislative reconsideration in light of post-colonial developments. By situating this defence against British India’s colonial landscape, it is argued that private defence was primarily viewed by Macaulay as a ‘law and order’ tool of governance. For Macaulay, private defence was to contribute to colonial law enforcement efforts and build a ‘manly’ character in the natives. Today, while the text of these provisions has remained remarkably stable, its content has been significantly reshaped by judicial interpretation. Unfortunately, these judicial developments do not advance a coherent, alternative approach to Macaulay’s ‘law and order’ conceptualization of private defence. However, in some instances, they do reflect inconsistencies with that conceptualization. The chapter concludes by suggesting how private defence can be reformulated in the IPC to reflect a more modern rights-based approach to private defence.