Indian Judicial Approach To The 'Reasonable Man' Standard In The Defence Of 'Grave And Sudden Provocation'
Author: LawSphereX
Category: General Law
Published:
Updated:
INDIAN JUDICIAL APPROACH TO THE 'REASONABLE
MAN' STANDARD IN THE DEFENCE OF 'GRAVE AND SUDDEN PROVOCATION'
Keerthna Nair, National Law School of India University
ABSTRACT
The defence of Grave and Sudden provocation has been laid down in the Indian Penal Code as an Exception to S. 300 which defines Murder. This defence reduces the charge of murder to that of Culpable Homicide not amounting to murder. In the English courts, The Reasonable man test is used to determine the graveness of provocation, meaning, if a reasonable man in the position of the accused gets provoked enough to kill the provoker, then, the accused is granted the defence and the sentence is reduced to Manslaughter. However, Indian Courts have digressed slightly from the English model of an objective reasonable man and devised a reasonable man subject to his social and emotional background.
The purpose of this term paper is to examine the Expansive meaning given to the reasonable man in the Indian judicial approach and particularly ask whether the social background and morality of the accused is one of the layers in this expansive meaning. This Essay is divided into four parts. In Part I of this paper, the Defence of Grave and sudden provocation and its need in the criminal justice system will be discussed, in part II, The 'Reasonable Man' standard of assessing the graveness of provocation as developed through English case laws will be discussed. In Part III, we will delve into the expansive meaning of 'Reasonable Man' as developed through Indian case laws to enhance our understanding of the refinement brought into this standard by Indian courts in terms of the social and emotional background of the accused. Part IV entails concluding remarks.
INTRODUCTION
The legal defence of grave and sudden provocation is a constantly debated and developing topic, especially when it comes to differentiating between murder and culpable homicide. This paper examines the different approaches that the judicial systems in England and India have taken in construing the ‘reasonable man' criterion in relation to this defence. First, it examines the basic meaning of grave and sudden provocation and clarifies the importance of this defence to the accused. It then breaks down the ‘reasonable man' test of the English precedent, showing how limited its application is in terms of moral and societal considerations. In contrast, the study looks at the Indian adaptation and highlights how guilt is determined by taking into account emotional background and social beliefs.
While appreciating the efforts of judges to extend viewpoints, this article promotes a broader holistic appraisal, transcending the constraints of the 'reasonable man' standard by considering diverse factors like age, sex, social values, and psychological conditions of the accused. PART I The Meaning and Importance Defence of Grave and sudden provocation has been a grey area in law for long and continues to do so. In India the defence has evolved with time and has incorporated various components into it. The defence of grave and sudden provocation is the first exception to the offence of murder reducing it to culpable homicide.
It reads; Exception 1—When culpable homicide is not murder—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Concisely, this means that if the offender lost control over his mind, owing to a grave and sudden provocation, which lead to him killing the provoker, the charge of murder would be reduced to culpable homicide, not amounting to murder. To understand why morality or societal values of accused should be one of the factors in determining the culpability of the accused and whether to be granted this defence or not, we must delve into the importance of this defence.
R. V Kelkar says – "A person who commits an offence in a composed manner with prior planning and intention is ‘morally more blameworthy’1 than someone who, in the heat of passion takes to killing a person " Thus, any society that believes in grading punishments according to the level of blameworthiness would support the defence of ‘grave and sudden provocation’ as is the case with Indian and English courts. The Indian Penal Code makes a clear distinction between culpable homicide amounting to murder and one which does not. The punishment for murder is either death or imprisonment for life2; if murder is committed by a person undergoing imprisonment for life, the punishment shall be death only. 3 On the other hand, the punishment for culpable homicide not amounting to murder can never be death, but only imprisonment for life or imprisonment which may extend to ten years.
4 Thus, for the accused, whether this defence applies, can have an enormous impact on his life. Also, flexibility of the courts in penalizing the accused is more when the defence applies and lesser when they are charged of murder. If the defence fails, the court has no choice but to pass the sentence of either imprisonment for life or death; if it succeeds, the offence becomes one of culpable homicide not amounting to murder where courts have a wide discretion in deciding punishment. This defence takes away homicide out of the category of murder and thereby changes the nature of the offence. Therefore, in any matter involving an inquiry as to the nature of a homicide, the circumstance of provocation will be of considerable importance. For instance, section 25 of the Hindu Succession Act, 1956, disqualifies a person guilty of murder from inheriting the property of the person murdered.
It is possible to interpret the section particularly, when read with section 28 of the said Act—as disqualifying a person guilty of murder only, and not one guilty of any other type of homicide. So, if provocation be proved in such a case, the disqualifications 1 Kelkar, R. V. “Provocation as a Defence in The Indian Penal Code. ” Journal of the Indian Law Institute 5, no.
3 (1963): 319–56.
2 Indian Penal Code,1860, §302, No. 45, Acts of Parliament, 1860 (India).
3 Indian Penal Code,1860, §303, No. 45, Acts of Parliament, 1860 (India).
4 Indian Penal Code,1860, §304, No. 45, Acts of Parliament, 1860 (India).
mentioned in section 25 of the Hindu Succession Act, 1956, will not attach to the person guilty of the homicide. PART 2 The objective ‘reasonable man’ from English precedents English courts have developed a reasonable man standard of assessing the gravity of provocation meaning thereby, if a reasonable man in the position of the accused gets provoked enough to kill the provoker, then, the accused is granted the defence and the sentence is reduced to Manslaughter. Over the years, with precedents being set, has the English law given space to subjectivity (Particularly on moral grounds) in this ‘Reasonable man Standard’. In Mancini v. D. P. P, Mancini was the manager of a club in Wardour St. called the Palm Beach Bottle Party.
The deceased was a member of the club who had been involved in a violent altercation early in the evening and who then returned to the club at between three and four in the morning. He grappled with Mancini at the entrance and Mancini stabbed him fatally with a seven-inch-long, double-edged dagger. He pleaded the defence of provocation, The House rejected the defence of provocation on the ground that " -the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter"5 This "reasonable retaliation" rule perpetrates the fallacy of insisting upon an accused's rational consideration of the most proportionate mode of response when the basis of the defence of provocation is a person's loss of self-control.
In English decisions, the test used is broadly an ordinary person should have lost self-control to the extent of killing the provoker in the way the accused did. 6 This test accentuates the fallacy mentioned above by saying that, since a reasonable man will only retaliate reasonably, the accused must also retaliate reasonably.
5 Mancini v. D.P.P. 1942 AC 1
6 Kelkar, R. V. “Provocation as a Defence in The Indian Penal Code.” Journal of the Indian Law Institute 5, no.
3 (1963): 319–56.
This test overlooked the possibility of the accused person’s social and community values impacting the graveness of provocation felt by them. In D. P. P. v Camplin, the judge said that "The question is not merely whether [the ordinary person] would in like circumstances be provoked ... to lose self-control but also whether he would react to the provocation as the accused did. " Hence reaffirming the decision in Mancini Certainly, Camplin was bound to adopt this form in view of the requirement in section 3 of the Homicide Act 1957 (UK) that the provocation must have been "enough to make the reasonable man do as he did". Even though this decision reaffirmed the ‘Reasonable Retaliation’ rule, a significant addition to the idea of reasonable man was brought about by this decision, prior to the historic House of Lords ruling in D. P. P. v.
Camplin, English law's ordinary person test was wholly objective and did not take into account any personal traits of the accused. This was changed in Camplin, when Lord Diplock ruled that the "reasonable man" is someone who possesses the self-control that one would expect of an average person of the accused's age and sex, and also shares characteristics that the jury believes would lessen the seriousness of the provocation to the accused. 7 It must be noted that the accused person’s age and sex are counted as part of attributes to be imposed on the reasonable man and this standard still does not include moral or social aspects of the accused. PART 3 Indian version of the ‘Reasonable Man’ Even though Indian courts have adopted the ‘Reasonable man’ standard from English precedents they tailored it to fit their needs.
The Indian test diverges from the ordinary man standard in the sense that it requires an ordinary person to have lost self-control in the same situation as the accused. This is opposed to the English requirement that; a reasonable man should also kill in the same manner as the accused. The graver and more sudden an offence is,
7 D.P.P. v Camplin 1978 AC 705
the more is the possibility of losing self-control. Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. 8 Based on this premise, Many Indian Judgements have added nuances to the reasonable man standard which go beyond age and sex of the accused, thus deviating from the English standard. In the case of K. M Nanavati v State of Maharashtra; Nanavati, the second in command of the Indian Naval Ship 'MYSORE', was accused of murdering Prem Ahuja. His wife and Ahuja had an illicit affair. Nanavati, unable to reconcile with his wife, took her to a movie and allegedly shot Ahuja. He then confessed to the crime at the police station. But, pleaded the defence of grave and sudden provocation. Nanavati was convicted.
Inter- alia the Supreme Court said that- " The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused was placed would be so provoked as to lose self-control. "9 More importantly it was stated that –"Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc. : in short, the cultural, enough for resulting in grave provocation, Though the provocation was not thought to be sudden. Hence, Nanavati was convicted.
Thus, under the Indian approach, the gravity of the provocation is to be assessed by reference to an ordinary person of the same social and emotional background of the class to which the accused belongs. Also, the emotional background of a person leading him to consider a provocation to be graver than an ordinary person may also stem from the social background of that person. Thus, these are overlapping factors. This decision was referred to, in many cases thereon, Akhtar v State of Uttar Pradesh and Jamut Majhi v.
State of Orissa are among them In the former case, the Allahabad High Court interpreted the Nanavati case was interpreted in this way- "In determining whether an accused person was overwhelmed by a grave and sudden provocation, the Courts in this country do and must investigate; whether the offender acted reasonably or normally or properly, as an average person in the position and circumstances of the offender may be expected to do, until the point of time at which the offender is deprived of his power of self-control.
But, once his power of self-control has been lost, it would be futile to expect him to retain such a degree of control over himself as to exercise choice over the weapon used by him for the attack or to show that his mode of resentment bore ‘a reasonable relationship’ to the operation"10 In this case the words ‘Position’ of the offender indicates Justice Beg’s view to also consider the social and emotion position of the offender and the word ‘circumstances’ can be adduced to mean the external environment while committing the crime. He also puts forward the importance of considering these 2 factors only up till the time when his power of self-control remains. 10 Stanley M. H. Yeo, "Lessons on Provocation from the Indian Penal Code," International and Comparative Law Quarterly 41, no. 3 (July 1992): 623 Akhtar v. State o1 Uttar Pradesh A. I. R. 1964 All. 262, 269.
In Jamut Majhi v. State of Orissa, The Orissa High Court cited a passage from Nanavati as authority for recognising the accused's ethnic background for the purpose of assessing the power of self-control of an ordinary person of the same background.
The Court then noted that the accused belonged to the "'Adivasis" who "are a class, comparatively more volatile and more prone to lose their self-control on slightest provocation"11 Here, considering the accused person’s social and emotional background was in line with adding the factor of moral and social values of the group of persons rather than taking a narrow approach of an ‘ordinary reasonable man’ while determining culpability of the accused Even though English courts have remained nonchalant to the developments in the Nanavati case and miss the mark in considering the social values of the community that the accused hails from in deciding culpability, Australian courts have made attempts to embrace the Indian approach, though unsuccessful. In the case of R. v. Saliba (1986)12, the New South Wales Supreme Court appears to have subscribed to the Indian approach.
In this case the accused was a member of the Lebanese Christian community residing in Sydney, an ethnic community with certain sexual taboos. She is provoked into killing a male relative when he makes sexual advances towards her. The court ruling propounds that - "So far as ... the examination of the conduct of an ordinary person in the circumstances is concerned. you must take an ordinary person who has the same social and ethnic background expect . . . as the reaction, in the circumstances. of an ordinary person of her or his age. background and culture. " Unfortunately, this has now been overruled by the Australian High Court's decision in Stingel.
13 PART 4 Culpability as a question of fact Having realised that the reasonable man standard is used because it justifies the defence of Grave and sudden provocation, why is there a problem with this standard which makes it smack of injustice even with the expansive meaning that is attached to it by Indian courts in some instances? When the Explanation 1 of IPC clearly posits that ‘‘Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact’’, We have made the determination of the application of this defence, a question of law by applying the reasonable man standard which means we are still at the stage of trying to interpret the reasonable man standard – as to ‘who is this reasonable man’14 to which we will not get a definitive answer ever.
We should rather try to simply analyse the facts of the case to determine the graveness of provocation taking into consideration factors like Age, Sex, Social values of community, Battered women syndrome etc.
CONCLUSION
In both the English and Indian legal systems, the legal defence of grave and sudden provocation continues to be an essential question in the determining culpability under culpable homicide and murder, this paper has carefully examined the subtleties of the ‘reasonable man' standard in this defence, demonstrating the ways in which Indian and English courts have influenced their applications and interpretations. The study began with an analysis of the importance of grave and sudden provocation to the accused before breaking down the English ‘reasonable man' test. It revealed this standard's shortcomings, especially with respect to considering the social beliefs and other factors
13 Stanley M. H. Yeo, "Lessons on Provocation from the Indian Penal Code," International
and Comparative Law Quarterly 41, no. 3 (July 1992): 615-631. 14 Kelkar, R. V. “Provocation as a Defence in The Indian Penal Code.” Journal of the Indian Law Institute 5, no.
3 (1963): 319–56.
personal to the accused. On the other hand, the Indian interpretation of this criterion takes into account more extensive elements such as cultural norms, emotional contexts, and societal values, as demonstrated by instances like K. M. Nanavati v. State of Maharashtra. While the English approach primarily focuses on an objective 'reasonable man' standard, Indian courts have embraced a more holistic assessment, considering the accused's social and emotional background as pivotal in determining culpability. This divergence in approach highlights the importance of cultural, traditional, and social values in assessing the gravity of provocation. Furthermore, the paper points out the inherent limitations of the 'reasonable man' standard, suggesting that determining the graveness of provocation should not solely rely on this standard.
Instead, a comprehensive analysis based on various factors like age, sex, social values, and psychological conditions of the accused should be undertaken.