Guest Post: Complicating Indian Law's Position on Voluntary Intoxication

(This is a guest post by Kieran Correia)

The Supreme Court of Canada (hereafter ‘SCC’) will soon rule on the constitutionality of the self-induced extreme intoxication defence in Canadian criminal law. The case before the SCC concerns two defendants who committed separate but similar offences. The incidents have been widely reported on, partly because of the extreme violence involved and partly because they question received wisdom on intention, voluntariness, and liability.

Broadly, both cases comprise defendants who committed violence against family members under extreme levels of intoxication. In both instances the intoxication was self-induced. The issue has split the courts in Canada. At the lower level, courts in both cases ruled that since Section 33.1 of the Canadian Criminal Code (hereafter ‘the Code’) prohibits self-induced extreme intoxication as a defence in violent offences, the defendants were guilty. The defendants appealed, and one challenged the constitutional validity of Section 33.1 of the Code. 

The Ontario Court of Appeals (hereafter ‘ONCA’), whilst hearing the cases jointly in R v Sullivan (hereafter, ‘Sullivan’), struck down the impugned law, and also overturned the convictions (more on that below). The prosecution has lodged an appeal before the SCC. 

The SCC’s judgement is highly anticipated because it will decisively settle the matter. It will also have implications for instances of violence directed toward women, where defendants often claim intoxication as a defence. It is unlikely, Canadian analysts have said, that the SCC will overturn the appellate court’s verdict, which is the focus of this post. The verdict moreover draws an interesting contrast to India’s approach to voluntary intoxication, which is also discussed. 

R v Sullivan: Facts and verdict

The ONCA heard both cases jointly. One involves Thomas Chan, a nineteen-year-old student. Chan consumed a high dose of magic mushrooms. Whilst under the influence of the mushrooms, he went to his father’s house, one Dr. Chan, who lived with his partner. Neighbours reported Chan exclaiming ‘This is God’s will’ and ‘I am God’ before breaking and entering. He then stabbed Dr Chan and his partner. The latter survived. His father died. 

The other case involves David Sullivan who was on a drug to curb his smoking. Sullivan had attempted suicide by ingesting high doses of the drug. After taking up to eighty tablets, he experienced a ‘profound break with reality’. He believed he caught an Archon—a type of supernatural being—in his house. He brought his mother to witness this. However, she tried to assure him there was nothing in the room. Upon hearing this, and under the continued influence of his tablets, he stabbed her multiple times with two kitchen knives, thinking she was an alien. After her screaming that she was his mother, he ceased stabbing her. She survived the assault but died before trial due to unrelated reasons. 

In Chan’s case, the ONCA examined the constitutionality of Section 33.1 of the Code. The trial court had found s 33.1 prima facie violative of the Canadian Charter of Rights and Freedoms (‘the Charter’)—the Canadian bill of rights. Section 33.1 (1) states:

It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

The ONCA developed a three-pronged argument to explain the issues with Section 33.1. The first is that the section violates the voluntariness principle of fundamental justice (‘lacked . . . the voluntariness required to commit the offence’). It is necessary, according to the Charter, that the ‘conduct that constitutes the criminal offence charged’ be voluntary. Since the section prohibits the defence of (self-induced) involuntariness, it is in express violation of this principle. 

The second prong is that the section violates the presumption of innocence guaranteed to all defendants. To prove someone guilty, the prosecution must prove all necessary elements of a crime. However, Section 33.1, the ONCA says, infringes on that principle by substituting voluntary intoxication for the intention to commit a crime. This absolves the prosecution of their duty and violates the defendant’s rights under the Charter. 

The third prong is that the section breaches the basic mens rea requirement set out in Canadian law: penal negligence. The section fails on three fronts: first, it does not require a link between the intoxication and the act of violence. Secondly, violent behaviour is not an inevitable foreseeable risk of voluntary intoxication, even if that link was required. Thirdly, the ‘marked departure’ element is also not present, even though the section refers to it. This is because voluntary intoxication per se does not constitute a ‘marked departure from the norm.’

The trial court had refused to accept Chan’s argument in its entirety, claiming that the clause was saved by Section 1 of the Charter, which allows for ‘reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’ The ONCA, however, rejected this justification. It held that to justify a piece of legislation under the Section 1 leeway, the prosecution must demonstrate two things: first, it must establish that the object of the law is sufficiently important to justify overriding a Charter right. And secondly, that the piece of legislation is proportionate. The latter is to be proved by ensuring the measures chosen are ‘rationally connected’, of ‘minimal impairment’, and of ‘overall proportionality’ (p 43). 

If even one element is unfulfilled, the legislation would be struck down. The ONCA found that Section 33.1 did not meet the latter three requirements and hence was violative of the Charter. 

Thus, the ONCA held that the ‘non–mental disorder automatism’ defence, whereby a person is so extremely intoxicated that she is unable to form ‘even the minimal intent required of a general intent offence’, is now a valid defence. However, since Chan has not (yet) established such a state of mind, his conviction only stands overturned, and a fresh trial ordered; he is not acquitted. 

In Sullivan’s case, since the court already established that s 33.1 would have no force and that he displayed non–mental disorder automatism, and thus mounted a successful defence, he would be acquitted on his assault charges. 

Indian and English position on intoxication

Indian law, under Section 85 of the Indian Penal Code (hereafter ‘IPC’), specifically allows for the excusatory defence of involuntary intoxication so long as the person intoxicated is ‘incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law’. However, under Section 86, the IPC limits a voluntary intoxication excuse, which states that: 

In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.

Whilst the wording of the section is ambiguous, the Supreme Court in Basdev v State of Pepsu (1957) clarified it. In specific intent offences—murder, robbery, and other offences which have a more purposive intent—the defendant’s drunkenness will be taken as a mitigating factor in determining if they possessed the intent to commit a crime. However, this will only apply when the drunkenness is sufficient to render them ‘incapable of forming the specific intent essential to constitute the crime’ (para 13). In general intent offences—culpable homicide not amounting to murder, assault, grievous hurt, and so on—the excuse would not apply. 

To sum up, Indian law, stated expressly in Mirza Ghani Baig v State of Andhra Pradesh, (AP HC, 1996) maintains that ‘voluntary drunkenness is no excuse for commission of a crime’. Considering the mitigating nature of Section 86, voluntary drunkenness does not prevent courts from imputing knowledge to the accused—and that is after crossing the very high threshold of being so drunk as to be unable to form intent. Thus, for example, a defendant’s murder charge under Section 300 may be lowered to culpable homicide not amounting to murder under Section 299 of the IPC. But it would not exonerate him—even though voluntariness and mens rea are vitiated by his intoxication. 

This mirrors English law on the issue, which Professors Andrew Ashworth and Jeremy Horder in their Principles of Criminal Law (9th ed) talk about. The absence of mens rea and volitional actus reus is ‘subordinated to considerations of social defence’, the idea being that some sort of deterrent is necessary, lest a clear path to acquittal be found using intoxication. This further justifies partially excepting specific intent crimes—murder, theft, and so on—because defendants can still be convicted under basic intent offences, such as manslaughter; no social defence is thus lost. Relatedly, and slightly confusingly, since ‘recklessness’ offences (similar to basic intent crimes) only require recklessness, courts find recklessness in the act of being intoxicated, which thus satisfies the ingredient. 

Moreover, even an automatism defence—such as in Sullivan—is not applicable to defendants in India, because, as Professors Ashworth and Horder explain, courts impute the case to intoxication (the cause) rather than automatism (the effect). This follows the doctrine of prior fault. R v Quick set this principle down in stone: Automatism that follows voluntary intoxication will not exculpate the defendant. (It is notable that the prosecution in Sullivan raised a similar argument. However, the ONCA, referencing a long line of Canadian judgements which rejected this transference of wrong to the intoxication rather than the criminal conduct being charged, discarded this argument.)

Reading Indian law with Sullivan

Indian law has a nuanced position on voluntary intoxication. However, it has no excuse provision for a defendant who, whilst self-intoxicated, experiences so profound a break from reality that he does not voluntarily commit the offence, even in specific intent offences. At most, the intoxication will lower the charge from a specific intent offence to a basic intent offence—for example, from murder to manslaughter. 

Against the backdrop of the discussion in Sullivan, this is problematic on three levels: first, the distinction between specific and basic intent crimes has no bearing on extreme intoxication cases. Secondly, extreme intoxication inhibits the voluntariness required to perform an act. A voluntary act is necessary for almost all severe crimes in India, including murder, grievous hurt, and so on. By allowing for a conviction even when the actus reus was not voluntary, this section contravenes an important principle of natural justice. Thirdly, and relatedly, even when accepted in specific intent crimes, the excuse is only mitigating. 

Section 86 bases itself on the principle that voluntary intoxication negatives specific and not general intent, the latter of which is held to be so basic as to endure even whilst voluntarily intoxicated. This does not hold up to scrutiny because the law does not hold the same for involuntary intoxication. Further, in extreme cases of automatism, for instance, even general intent offences would be hard to prove. In such cases, the defendant would be unaware of her immediate circumstances. To claim that she still possessed intent, however basic, is suspect. Alternately, the argument that recklessness offences’ ingredient is satisfied through intoxication annihilates the distinction between ‘legal’ recklessness (where the defendant knew of the consequences and ploughed ahead regardless) and the colloquial usage of the term, something Professors Ashworth and Horder talk about as well. 

Secondly, a voluntary act is a core requirement of criminal law. In cases of voluntary intoxication of extreme levels, an individual may lose control over their actions. That is, they suffer from volitional incapacity. However, the section disallows even volitionally incapacitated persons from raising the excuse. This contradicts the voluntariness necessity. 

Finally, the excuse is a mitigating factor; even after satisfying the high requirements of the section, it does not serve as an exculpating factor. Even though foundational elements of crime—voluntariness and mens rea—are unfulfilled, or are cast doubt on, the defendant does not stand to be acquitted. He will continue to be liable. The law thus negates the defendant’s rights and grants wide latitude to the prosecution in proving their case. 

As for the prior fault doctrine which underpins English law, it is manifestly unfair to generalize correlations between intoxication and criminality. As the Sullivan court states, "proving intoxication does not necessarily or even ordinarily prove the intention to commit assaults" (p 34). A case-to-case approach must be followed. Thus, where it was unexpected and unforeseeable—as with Chan and Sullivan—that the intoxicants would have such violent results, it does not follow for courts to impute ‘prior fault’. 

Conclusion

R v Sullivan, most legal analysts agree, is a valuable and measured amendment of the law on the intoxication defence. By rejecting this rigid restriction, and positing a carefully considered replacement, the ONCA took a balanced approach to a hot-button issue with potentially deleterious implications for women and children. It thus restores important legal rights to defendants.

The decision has useful learning for Indian legislators and jurists. The Indian law on voluntary intoxication, encapsulated in Section 86 of the IPC, is heavily biased against the defendant. It flies in the face of important principles of natural justice which safeguard defendants against prosecutorial zealotry. It is urgently in need of amending. 

Nevertheless, it is imperative to make sure that reforms do not go too far in favour of defendants, since this defence is often taken up by alleged domestic and sexual abusers. This concern takes on added significance in India, where institutions of law are overtly arrayed against women’s interests. Where truly intoxicated to the point of being unaware of one’s surroundings, it would be unfair to charge defendants with either general or specific intent crimes. However, giving carte blanche to an accused would do more harm than good. Following Sullivan’s constricted approach—applied only after the defendant meets a very high threshold—provides a way out of this quagmire.

Guest Post: Lessons From Abroad — R v Tran and Provocation in India

(This is a guest post co-authored by Varshini Sudhinder and Jibraan Mansoor)

SATURNINUS: Because the girl should not survive her shame, And by her presence still renew his sorrows; 

OTHELLO: I will chop her into messes! Cuckold me?; 

Introduction

Shakespeare’s cuckold has been a prominent theme in various works such as, The Merry Wives of Windsor, Cymbeline, and The Winter’s Tale. But what was supposed to be a literary feature has often made inroads into the halls of justice. For instance, in R. v. Mawgridge [(1707) Keil. 119], Judge Holt wrote,“[A] man is taken in adultery with another man's wife, if the husband shall stab the adulterer, or knock out his brains, this is bare manslaughter: for Jealousy is the Rage of a Man and Adultery is the highest invasion of property”. It is not uncommon to find Indian courts reaching the same conclusions. For instance, when in C. Narayan (1958 Cri LJ 476) a wife was strangled to death by her husband after she confessed her adultery, and in Murugian (AIR 1957 Mad 541) when a husband killed his wife in response to her defiance about her adultery, in both these cases courts agreed that this was not murder as the accused had acted under provocation.

In this post, we attempt to re-complicate some of these conclusions. Borrowing from the Canadian experience we argue that at the heart of the “provocation for adultery” question rests a need to carefully balance human frailty with considerations of sexual autonomy. The post broadly covers four aspects. First, we briefly explain how Indian law has come to understand provocation and we identify certain issues which remain unanswered. Second, having identified the issue, we discuss the Canadian case of R v. Tran (2010 SCC 58) [Tran], to understand how the Canadian Supreme Court has made attempts to resolve these issues. The third section showcases a possibility of using the Canadian decision to good effect in the Indian Context. Finally, we discuss how Indian courts might consider changes to granting provocation in cases of adultery at a time when adultery is no longer a crime per se. 

Indian Courts, and Provocation as an Exception to Section 300

The statutory text of provocation needing to be “grave” and “sudden” tells us barely half the story; judicial decisions have added a great deal of nuance in applying this test. Stanley Yeo, in his paper, Gravity Of Provocation Revisited, having analysed the Indian experience, suggests that the judicial inquiry into a provocation plea involves first analysing if a “reasonable man” would be so provoked, when placed under a similar situation, to lose his self-control like the accused. After such an examination, and seeing if the accused did the same, we need to trace the fatal blow to the “influence of passion” which arose from the provocation, and not after having sufficient time to “cool down”, to prevent any scope of premeditation.

However, as R.V. Kelkar in his paper, Provocation as a defence in the Indian Penal Code notes, the judiciary has not always clarified things. One of the main reasons for this is the acceptance of the objective standard, that of a reasonable man, to analyse the defence of provocation. Using the “reasonable man” standard can lead to a lot of problems because the associated characteristics of a reasonable man have not remained consistent over time, as courts have acknowledged that obviously no person is ideally reasonable, and in fact is associated with “mistakes” and “defects”.

The canonical Nanavati (AIR 1962 SC 605) highlighted the need for the “reasonable man” to belong to the same class category and social realities, as the accused, to bring within it the “emotional background” of the social class to which the accused belongs. The court associates this reasonable man with certain characteristics, customs, manners, ways of life, etc. Some courts over the years have reinterpreted “reasonable man” to be an “ordinary” or “normal” one. Yeo stresses on the relevance and the importance of doing something like this because all persons are differently placed and come from diverse backgrounds. According to him, an accused’s characteristics may be of relevance either if the provocation was directed at particular characteristics of himself/herself; or, if the accused belonged to a class of persons who tend to possess self-control which is less than others.

Even though the above discussions are important as they recognise the need to account for human frailty, yet they also raise concerns about not allowing sexual autonomy to women. More broadly, they make one wonder that if we allow for the “sudden and grave” provision to be exercised by those in power, then do we completely dismiss the normative horizons that criminal law seeks to achieve by altering individual behaviours? So, will the Indian Jurisprudence allow a defence of provocation to an ultra-conservative Hindu belonging to a culturally sensitive class who murders a Muslim offering Namaaz in front of them? Further, to what extent can psychological factors which do not directly harm one, can become justification for the person to employ the defence of provocation? In order to address some of these questions, at least in the context of adultery, we undertake a comparative jurisdiction analysis, or “lessons from abroad”, by analysing the Canadian Supreme Court in Tran, and try to analyse the applicability of the Canadian Court’s decision in the Indian context.

R v Tran and New Beginnings 

The facts of R v Tran (2010 SCC 58) are straightforward. A man estranged from his wife snuck into their former home to discover her in bed with her new lover. He then flew into a rage, fatally stabbing his estranged wife’s lover with a knife, while also harming his estranged wife with that weapon. While there were various aspects in the decision which have interesting implications — how the court read the facts to understand “sudden” — for our purpose, the court’s assessment of what constitutes as a harm enough to allow for provocation is central. 

The court explains that the “… ordinary person standard must be informed by contemporary norms of behaviour…”, but these must not derogate the fundamental values of equality (the court refers to the Canadian Charter of Rights and Freedoms) and the “accused must have a justifiable sense of being wronged”. The court gives examples of how it would be apposite if the “ordinary person” included the relevant racial characteristics, had they been at the receiving end of a racial slur, but not homophobic characteristics had they been the recipient of a homosexual advance. Furthermore, it held that “there can be no place in this objective standard for antiquated beliefs such as ‘adultery is the highest invasion of property’ nor indeed for any form of killing based on such inappropriate conceptualizations of ‘honour’.”

We see in this decision that the court is making a conscious attempt to limit the attribution of certain characteristics in determining whether provocation took place. More specifically, the Court is acknowledging that they have to balance between accounting for human frailty and justice. It is trying to denude the power differentials that are ascribed to people just by virtue of their birth and belonging, as opposed to individual choices. Furthermore, the court by recognising that the “accused must have a justifiable sense of being wronged”, seeks to highlight that there ought to exist some legitimate harm, wherein legitimate has to be understood as a normative exercise constrained by institutional principles — which was accrued to the accused for the partial defence to be granted. But can we reconcile this approach with the manner in which we historically understand provocation as a category, i.e., if provocation is to be understood as a psychological question accounting for human frailty in the Indian experience, would placing social normative values be a plausible exercise? 

Is R v Tran possible in India?

Botswana’s High Court in State v. Segana Seleke [1974 (1) BLR 102 (HC)] made certain interesting observations about the Indian experience. While the court recognised that the English experience has applied “considerations of social morality to what in the final analysis is a psychological problem”, but in “many jurisdictions in India such a distinction, [issues] based wholly on the question of whether or not a relationship sanctioned and approved by the law exists between the accused and the other party to the adultery, is not countenanced.”

This observation of Botswana's court can be re-affirmed by (Kota) Potharaju [AIR 1932 Mad 25]. Here the accused found his “mistress ... in the arms of a former lover, lest control of himself and stabbed her”. The Madras High Court accepted a plea of provocation and held: “One cannot supply considerations of social morality to a purely psychological problem. The question is not whether the appellant ought to have exercised, but whether he lost control over himself. When a man sees a woman be she his wife or his mistress, in the arms of another man he does not stop to consider whether he has or has not the right to insist on exclusive possession of her person … she is a woman, of whose person he desires to be in exclusive possession and that is, for the moment, enough for him”.

This case was contested in Murgi Munda [(1939) ILR 18 Pat 101], where prevalent custom dictated that any unmarried man and woman may cohabit with each other, but if the woman is impregnated by a man, he must marry her. In this case, the deceased, Gansa, used to be in that kind of a relationship with Bandai, and when he moved away, she and Murgi entered into a relationship. The night when Murgi found Bandai and Gansa together, he killed the latter in rage, and then pleaded provocation in the Court.

Justice Fazl Ali and Justice Agarwal held that they disagreed with (Kota) Potharaju, since, “the mere fact that a person’s desires are thwarted does not in law justify him killing the person who is thwarting him. The provocation which is mentioned in the 1st exception to section 300, Penal Code, is something which is recognized as provocation in law and not merely something which arouses the uncontrollable anger of a particular individual.” Further, “In the case of a wife the position is entirely different. The law recognizes that a husband is entitled to expect fidelity from her”. And in the present case, their relationship was not one where Bandai owed him any form of fidelity. 

Murgi Munda further cited Palmer [(1913) 2 K.B. 29] to justify the need for fidelity in order to explore the nature of relationships which legitimately allow the defence of provocation. Palmer is important since the Court of Criminal Appeal held, “… the relation between the parties was not that of husband and wife, nor was it a case of unmarried persons living together as husband and wife. They were simply persons who were in the position of being engaged to be married. Under those circumstances if the effect of the summing up was to leave the jury under the impression that they could not properly find a verdict of manslaughter we think that it was right.” In both Murgi Munda and Palmer, we notice how the courts are eager to distance themselves from the kind of reasoning seen in Potharaju, as the courts are highlighting that there are certain relations which aren’t socially perceived as being as sacrilegious as others, and hence shouldn’t be entitled to the defence of provocation. Immediately, one suspects of whether the Indian courts are completely treating provocation as a psychological issue to begin with or not. Further, one wonders how Murgi Munda’s decision which relied upon the law recognising the husband’s entitlement of fidelity from his wife, would change after Joseph Shine [AIR 2018 SC 1676].

The second engagement between the High Courts which is relevant for the current issue can be seen by analysing Murugian and Jairam Chandrabhan. In Murugian [AIR 1957 Mad 541], Basheer Ahmed Sayeed J. observed, "But it should be noted that these decisions apply to the society in England and countries of western culture and civilization. It is well known that in western societies, marital laws and violations thereof are looked upon with such (sic) greater latitude and the award of damages in Civil Courts would constitute sufficient redress. Adultery is not made punishable as it is in our country where a more serious view is taken of offences against marital rights." However, in Jairam Chandrabhan [AIR 1959 Bom 463], where the accused murdered his wife as he saw her enter someone else's house and when confronted told the accused that she'd continue engaging in the relationship, the court disagreed with Murugian. The court held that “In our opinion, it would be extremely hazardous to apply the First Exception to Section 300 to a case of the kind we have here merely on the ground that offences against marital rights are made punishable by the law in India ... Bearing in mind the fact that adultery though frowned upon in our country is not uncommon in the village community and bearing also in mind the fact that even before the law made a provision for obtaining a divorce, a customary form of divorce has prevailed in the village communities, it would not be right to hold that the reaction of an Indian spouse from such a community would be different from that of one in the western countries.”

The court subsequently held that the offence would not constitute “grave and sudden provocation” for the accused to be given the partial defence from 300. Even though the court in Jairam Chandrabhan does not explicitly denounce adultery, it is anxious to allow violation of marital rights from becoming the sole ground for allowing for the partial defence to be granted. So instead of following the reasoning seen in R v Tran, the court tried to ignore the Indian courts’ approach of “cumulative provocation” and held that mere exchange of words between the accused and his formerly deceased wife—completely ignoring the act of adultery itself—couldn’t constitute as “grave and sudden” provocation. Even though Jairam Chandrabhan could be accused of compounding the confusion as it erodes “cumulative provocation”, the importance of this case is a) in its ability to recognise that violation of marital rights might not be enough to constitute provocation and b) given the widespread norm of adultery, the anxiety of male heterosexual violence which might be perpetuated if the partial defence is guaranteed. [Note: Jairam Chandrabhan also becomes important for it subtly challenges the assumption about the various attributes of the “ordinary person” (by questioning the distinction between village communities and western countries), while Indian courts attempt to be sensitive to cultural contexts. However, the implications of this observation are beyond the scope of this post.]

Indian courts have not resolved these questions directly and have more often than not continued to allow for adultery to be a ground for provocation. But from the above discussions, if there is a possibility of social morality becoming the guiding force of what we consider as “provocation” enough, it might be so that today when adultery is no longer a crime following Joseph Shine, instances of adultery in some cases might not be enough to be treated as an exception to 300.

Joseph Shine’s impact on Provocation

The main focus in Joseph Shine was constitutional questions posed by the adultery offence (Section 497 IPC) Even so, the various opinions made some extremely important remarks about how questions of adultery are in essence gendered questions concerning monogamy, sexual subjugation and treatment of women as property. For instance, Chandrachud J. noted that, “throughout history, adultery has been regarded as an offence; it has been treated as a religious transgression, as a crime deserving harsh punishment, as a private wrong, or as a combination of these”, and further, ”To fully recognise the role of law and society in shaping the lives and identities of women, is also to ensure that patriarchal social values and legal norms are not permitted to further obstruct the exercise of constitutional rights by the women of our country.”

While Section 497 IPC operated in clear gendered differentia, it might not be too difficult to claim that provocation as a defence in cases of adultery has empirically more often than not been used by men. By the court recognising that adultery being treated as a harm enough is an impediment to constitutional rights of women, one cannot help but wonder whether allowing adultery to be a provocation “grave” enough, ends up embedding the same stereotypes which allow for exercising control and dominion over a woman’s body? 

We are even more afraid when we take into account the importance that the judiciary has attributed to notions of property over the years. For example, in a case like Muthu, [(2007) 12 SCALE 795] where the victim was killed for merely throwing garbage into the property of the accused, we see the Court allowing provocation to be granted to the defence. Just like Muthu, we are worried that the courts are yet again placing undue premium on conception of property, especially from a man’s perspective, as opposed to recognising or at least deliberating the question of a woman’s control over her autonomous body. 

Framed otherwise, the above discussion leads to two questions: (1) While historically adultery had connotations of property, can we now move to a place wherein we recognise adultery as an autonomous private decision, and thereby limit the attribution of psychological provocation that courts have historically undertaken, and (2) Keeping in mind Palmer, Jairam Chandrabhan, Murgi Munda line of cases and R v Tran, do Indian Courts need to re-assess the question of provocation by recognising the need to balance human frailty with the normative horizons that criminal law wishes to achieve by altering human behaviour? These are both questions which the courts have to engage with seriously, for us to be able to have a just, clearer and more concrete understanding of provocation, as seen in exception to 300.

Guest Post: America and the Insanity Defence — Kahler v Kansas

(I am pleased to present a guest post by Karan Gupta, an advocate practising in Delhi.)

Since the mid-1800s, the M’Naghten Rule (insanity defence) has been employed to exonerate defendants on criminal trial. In Kahler v Kansas, the question concerned whether the Due Process clause of the American Constitution requires States to allow a defendant to raise the defence of insanity that they could not “distinguish right from wrong”. The Supreme Court of Kansas rejected the challenge. On 24 March 2020, the Supreme Court of the United States (SCOTUS) rejected, by a 6-3 majority, Kahler’s appeal and held that the Due Process clause imposes no such requirement.

Facts

In 2009, following his divorce, Kahler shot and killed his wife, her grandmother and his two daughters. He surrendered the following day. He was convicted of capital murder and sentenced to death. At trial, the counsel for defence contended that Kahler had a mixed obsessive-compulsive, narcissistic, and histrionic personality and that he ‘snapped’. The state expert affirmed that he was mentally ill but had the ability to form intention. The defence was rejected on the ground that no moral capacity defence existed under Kansas law.

The SCOTUS Appeal

The majority and the dissent agreed that the M’Naghten rule stipulates two enquiries – first, whether the defendant knew the nature and quality of the act i.e. whether the defendant understood the action (cognitive capacity); or second, whether the defendant could differentiate between right and wrong (moral capacity). [p. 19, D2] These would allow the exoneration of both a mentally ill defendant who shoots an individual thinking they are a dog or cuts a person’s neck thinking it is a loaf of bread as well as someone who knowingly shoots a person under the belief that a dog ordered the kill. Prior to 1995, Kansas allowed both defences. However, by virtue of the 1995 amendment, the moral capacity defence was abolished. As the person in the second scenario understood the action, the intention to kill stands established and the person would not be exonerated. Four other states have laws similar to Kansas – Alaska, Idaho, Montana and Utah.

The SCOTUS has previously laid down that a state criminal law violates the Due Process clause only when it “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” In such determination, the Court turns to eminent common law authorities, precedent and “basic values that underlie” society. Kahler contended that the M’Naghten rule (and specifically the moral capacity test) fell within this ambit and Kansas had “unconstitutionally abolished the insanity defense.” [p. 5]

Justice Kagan (writing for the majority) agreed with Kahler that for “hundreds of years” jurists and judges have recognized the broad defense of insanity and there is no “single case to the contrary.” [p. 11]. The majority however held that Kansas’ law does not depart from that broad principle and does not fail to “offer any insanity defense at all” [p. 12] for two reasons:

First, Kansas’ law provides that the lack of the culpable mental state required for the crime as a result of mental disease or defect shall be a “defense to a prosecution”. Kahler could simply prove that he had no intention to kill. Second, while moral capacity is disregarded at the guilt-determination phase, it is a factor at the sentencing stage to mitigate culpability.

Critique

The first reason, far from highlighting a version of the insanity defence, merely reaffirms a basic tenet of criminal law—the prosecution must prove beyond reasonable doubt the existence of a mental element (intent) for crimes that require it. This would aid a person who mistakenly fires a gun but it would not aid a mentally ill person who intentionally fires the gun under the belief that unless he killed the person, the world would end. The second reason overlooks insanity an independent affirmative defence to prosecution itself. What appears to have persuaded the majority is that sentencing mitigation could lead to the same situation as in a state that allowed the moral capacity defence. [p. 4, 5] However, the moral capacity defence extends to every successful defendant the right to not be found guilty in the first place.

While the majority affirms the broad insanity defence, the question was whether the specific moral capacity test commanded such acceptance. The majority held that Kahler could not show “settled consensus” and consequently, as “the record is far more complicated”, such a “motley sort of history” cannot be the basis of a Due Process claim. [fn 8, p. 18, 19] Surveying precedent and commentaries, the majority held that the “overall focus” was on the ability to form intention (cognitive capacity) and not on moral capacity. [p. 16] Thus, the inability to distinguish between right and wrong, rather than being an independent ground, “served as a sign” of cognitive breakdown which precluded the finding of any intent. [p. 18] The majority here erroneously conflates the intention to commit an act and the ability to distinguish right from wrong.

The dissent addresses this by highlighting that while a person’s mental illness may leave unaffected their ability to form intention, it may nevertheless affect their motivation. [p. D20] For example, where a person commits a crime under the delusion that they will otherwise be killed (persecutory delusion) or that a supreme being commands it (religious delusion), they possess the requisite intention but not the moral capacity required for blameworthiness, thus precluding criminal responsibility.

The majority notes that definitions of legal culpability and mental illness are matters of 'state governance, not constitutional law.' [p. 24] In constitutional doctrine, this is sound. A federal structure requires that states are granted the autonomy to define the relationship between crime, moral culpability, and mental health. The dissent unequivocally agrees with this. [p. D1] However, the dissent holds that Kansas has not modified the defence but “eliminated the core” completely. [p. D1] The dissent holds that while the moral capacity test is not constitutionally required, it emerges from a “fundamental principle” [p. D4] of criminal law – that criminal liability must reflect a defendant’s capacity for moral agency and culpability. Absent such agency, such persons are “no more responsible for his actions than a young child or a wild animal.” [p. D3] This would explain why crimes committed by children are now treated differently with some countries exempting children from any prosecution altogether.

The dissent states that even in the context of the common law tradition, ‘mens rea’ was broader than mere intent and was linked to free will and moral understanding. According to this, where there is no reason, there is no free will. Where there is no free will, there can be no intention. Justice Breyer write — “To be guilty of a crime, the accused must have something more than bare ability to form intentions and carry them out.” [p. D13] The ‘more’, according to the dissent, is the agency to distinguish right from wrong. According to the dissent, the M’Naghten Rule was itself based on prior settled American criminal jurisprudence on individual blameworthiness and culpability. [p. D15]

The final reason employed by the majority is that while the moral capacity test requires the ability to distinguish right from wrong, the word ‘wrong’ could mean either a legal wrong and a moral. [p. 21] If a defendant was aware that the action is against the law, they would not be exonerated, despite their belief that the action was morally just (say commanded by God). The Court notes that 16 states have adopted the ‘legal wrong’ variant of the moral capacity test and accepting Kahler’s contention would require them to be struck down. While there is some support to Justice Breyer’s statement that the difference between legal wrong and moral wrong is illusory as it exonerates “roughly the same universe of defendants”, [p. D17] the simpler answer to this is that a question of this distinction did not arise in this case as Kansas provided neither version of the moral capacity test.

Conclusion

SCOTUS had an opportunity to decide the issue in Kahler by affirming the importance of values at the heart of criminal law. Unfortunately, the Majority opinion has failed to do so. To me, the Dissent not only reaches the correct outcome, that the Kansas' action violates the Due Process clause, it also arrives at this outcome via a more favourable approach that is committed to the basic tenets of criminal law such as moral agency, culpability and blameworthiness. As the Dissent rightly notes, Kansas’ law will lead to the “conviction of a broad swath of defendants” who “would be adjudged not guilty under any traditional form of the defense.” [p. D21] This would violate “deeply entrenched and widely recognized moral principles” of the criminal justice system. The Majority opinion in Kahler is right to note the leeway states possess in a federal polity. However, what the Majority overlooks is the significant points highlighted in the dissent and above. Where the Majority holds the Kansas has modified the defence, it has in fact dealt it a death blow.

Guest Post: Justifications, Excuses and General Exceptions

(This post has been co-authored by Kaustav Saha, who is currently a BCL candidate at Exeter College, University of Oxford)

This post considers two issues from the realm of defences in criminal law. The first part, co-authored with Kaustav, engages with the debate concerning treatment of justificatory and excusatory defences. In the second, unrelated, part, I focus on the Indian Penal Code 1860 [IPC] and examine a particular issue regarding the Indian statutory framework surrounding general defences. 

Justifications, Excuses and Wrongfulness

Justifications and excuses differ considerably in their normative implications as well as practical effects. A useful barometer [which may break down on severe scrutiny], is that justifications are attached to the circumstances of an offence, while excuses arise from the personality of defendants. But this does not consider a deeper question, which is whether persons invoking these defences should be viewed differently? Should claiming a justificatory defence as opposed to an excusatory defence attract different consequences?

To answer this, think of justifications and excuses differently. A standard view in the literature is that while justifications deny wrongdoing, excuses deny responsibility. In the former, a defendant is denying that she committed a wrong, while in the latter she asserts that she should not be held liable (be excused) despite the wrongful character of her actions. Professor Gardner argues this distinction is misleading, for by invoking a justification the defendant is not denying wrongdoing but is in fact conceding it. The innate wrongfulness of hurting a person does not change, whether done by a police officer chasing a suspect or a person killing for personal motives. For him, thus, a justificatory act cannot be considered as something that guides conduct. In this, his view is opposed by Professor Simester who argues justifications do indeed offer motivating reasons to engage in certain conduct. These acts, according to him, are not merely tolerated but are morally permissible and this takes away from the wrongfulness of the act. 

We find Professor Gardner's view more acceptable that defences cannot serve as positive reasons for acting. Most importantly, because it supports the desirable principle that accepting this reinforces a cynical view of the law and militates against the idea that people may aspire to standards of conduct that go above and beyond what the law may demand from them.

It may well be argued that this debate about 'wrong' is, well, purely academic. After all, most criminal law functions do not care about the innate wrongfulness and the successful pleading of both justificatory and excusatory defences completely takes away the label of criminality which matters most. The different consequences - insanity may lead to the defendant being admitted to a facility - is not concerned with the issue of 'wrong' either. But we argue that this debate is not without practical utility. For instance, consider this in context of the allegations of police brutalities in the USA. One could argue that maybe, in that setting, Professor Simester's view would resonate with officers often considering the ability to take violent action itself as reason to take that action. The existence of a duty-based justification served as reason to shoot suspects because the justification dissolved the wrongfulness of causing harm.

Could this view be extended to other scenarios? For instance, an over-exuberant exercise of detention powers by officials when dealing with anti-terrorism legislation? Or in India, the carrying out of search, seizure, and arrests when dealing with economic offences which are consistently labelled as 'threats of economic security of the nation' by the State. We are unaware of empirical studies specifically testing the arguments of Professors Gardner and Simester in such duty-contexts. It may offer fantastic insight into how analysis of justificatory conduct is highly context dependant.

The IPC and General Exceptions

This brings me to the second issue. Chapter IV groups Sections 76 to 106 of the Indian Penal Code 1860 [IPC] under the title of 'General Exceptions' (not General Defences, as is commonly assumed). These apply to offences under the IPC and beyond [See Section 40 IPC] and are basis upon which criminal liability can be negated. The IPC does not contain any distinction between how the different defences are treated, and also stays away from the debate of justifications and excuses. Exceptions normally fully absolve the defendant of criminal liability, and the Code expressly indicates where this is not so [Section 86 and voluntary intoxication, for instance]. During trial, the burden of proving the existence of facts to claim an exception is placed upon the defendant [Section 105, Indian Evidence Act 1872]. Is this fair? 

In this regard, the Indian system differs from how criminal trials operated (and continue to operate) in the UK [under common law, the burden was only placed on a defendant when claiming a defence of insanity]. A frequent argument justifying the reversing of burdens [quite prevalent across criminal law today], is how the defendant is best-placed to offer proof for facts especially within her knowledge. The Indian Evidence Act statutorily recognises this principle through Section 106. Does this logic of the defendant being 'best-placed' sufficiently explain away the rule of Section 105? I argue that it  is mostly acceptable, but for the position in Section 81 of the IPC, which is a mixture of both, subjective and objective, positions in the criminal law.

What are these subjective and objective positions? A subjective position in criminal law means that you view the existence / non-existence of facts from the eyes of the defendant. An objective view would view things from the standpoint of an outside observer. Naturally, fidelity to either position can attract very different consequences on issues of liability as it poses questions to the very existence of fault elements [as I explained in context of attempts once on the Blog]. If we look at the General Exceptions in the IPC, it becomes apparent how the Code adopts different positions for the different exceptions it provides. For instance, consider Section 79 which says "nothing is an offence which is done by any person who is justified by law, ow who by reason of a mistake of fact and not be reason of mistake of law in good faith, believes himself to be justified by law, in doing it." The text, together with the illustration, confirm the subjective position is adopted: it tells us that an officer is justified for arresting someone she believed had committed murder, though it may turn out that the person was acting in self-defence. 

But move to Section 81 which is India's version of a defence of duress: "nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property." This is followed by an important injunction: "it is a question of fact in such a case whether the harm to be prevented was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm." The initial subjective position is interposed with a clear objective caveat!

I argue that where, after claiming an exception, the Code adopts an objective position regarding the existence / non-existence of facts upon which a successful claim depends, it is unfair to place the burden upon a defendant to prove such facts. It is not a fact especially within the knowledge of the defendant. Rather, it is perhaps easier for the prosecution to furnish statistics. Even if we imagine the state of play, shifting the burden on the prosecution would appear more suitable. If the court is unconvinced with the initial plea itself, then the question would not arise. If the court thinks there is an arguable case, then have the prosecution show why the exception cannot be successfully claimed.

Of Entrapment and Agent Provocateurs - Part II

In the previous post, we discussed India's treatment of an Agent Provocateur: "one who entices another to commit an express breach of law which he would not have otherwise committed and then proceeds or informs against him in respect of such offence". Here, I consider the position of the person tempted, enticed and induced into committing the offence. Few would refuse to admit that a person who ordinarily harboured an intention to commit an offence, is placed differently from one who is egged on to commit the offence. The devil, as they say, lies in the detail. It is here that the fact of public versus private agents can matter: for some, the situation be more opprobrium-worthy if the Police were behind such manufacturing of crime, as opposed to some journalist. As we will see, it is a detail which matters.

The Tempted

Two broad questions are raised in respect of our Eve, (i) how does the law treat the fact of Entrapment when considering guilt or innocence, and (ii) how should the law treat this fact. [Caveat: unlike most posts, this does not solely consider the Indian position, for there is a near-absolute dearth of discussion on the point. English and American experiences are drawn from, and those interested in reading further may also consider Canada's treatment of the point.]

Entrapment: How it is Today 

In India, Chapter IV of the IPC contains 'General Defences'. Entrapment is not one of them, nor is it recognised as a defence in any special statutes on criminal law. The situation is England is similar, where no Entrapment defence is recognised statutorily, or at the common law. Both countries do, however, have procedural laws that prevent any abuse of process [Section 482, Cr.P.C. 1973; Section 78, Police and Criminal Evidence (PACE) Act 1984]. While we haven't yet courts label such police action as an abuse of process in India, we did see in the previous post that such police practices are deprecated. In England a stay of proceedings has been granted on grounds of Entrapment by the police in R v. Loosely [2001 UKHL 53].

The USA though, does recognise a defence of entrapment where Law Enforcement agents act as Agent Provocateurs, but not private entrapment. The Supreme Court of the United States [SCOTUS] in Casey v. United States [276 U.S. 413 (1928)] declined to discuss the point, but it placed itself squarely for consideration in Sorrells v. United States [287 U.S. 435 (1932)]. The Court unanimously affirmed the defence, but schisms appeared concerning its understanding. The Court [in an opinion by Hughes J.] believed the Defendant's 'predisposition' to commit the offence was relevant to determine if any entrapment occurred. Merely affording an opportunity for committing the offence is insufficient; the seeds must be planted by the Police. In a separate opinion, Roberts J. believed the focus ought not to be on this predisposition, but rather on the role played by the Police allowing for a more objective analysis. Jacobson v. United States [503 U.S. 542 (1992)] was the first time since Sorrells that the Court did not raise the debate [previously raised in Sherman v. United States, 356 U.S. 369 (1958); United States v. Russell, 411 U.S. 423 (1973)], suggesting the point has become moot.  

Entrapment: How should it be?

This question has varied treatment across jurisdictions: while the USA has debates over the nature and scope of the existing defence, the UK can yet consider a wider set of ideas given the current absence of any defence. 

Not everyone has been satisfied with the rather subjective nature of enquiries in the USA: the line of thought fronted by Roberts J. has found some academic support. The bigger debate today though is on 'Private Entrapment': operations by journalists and other private persons to expose truths [see, Gideon Yaffe "'The Government Beguiled Me': The Entrapment Defense and the Problem of Private Entrapment", 1(1) Journal of Ethics & Social Philosophy (2005); Richard McAdams "The Political Economy of Entrapment" 96(1) Journal of Criminal Law & Criminology 107 (2005)]. State participation in the operation has been central in SCOTUS applying the defence, although one may argue that the subjective test in fact allows an extension to private operations as well by focusing on the tempted and not the tempter. 

Since Loosely (2001), the UK can be seen as recognising some protection in cases of entrapment. Writing prior to this remains important to consider what other approaches may be followed through Section 78 of PACE which allows a variety of remedies through the 'abuse of process clause' [see, Andrew Choo "A Defence of Entrapment", 53(4) Modern Law Review 453 (1990)]. The focus in Section 78 is on the conduct of the police or prosecuting authority, which makes its extension to Private Entrapment difficult. Thus, while the private nature of entrapment did not prevent a stay in R v. Hardwicke [(2001) Crim L.R. 220], it became the reason to refuse reliefs under Section 78 in R v. Shannon [(2001) 1 WLR 51].

India and Entrapment

Since India has a clean slate to work on, the law potentially can develop in several directions. We already have one protection to persons who have been entrapped: evidence of the Agent Provocateur must be corroborated for it to be relied upon. What about an Entrapment defence? Traditional defences are premised upon either excusing certain acts from liability [say, insanity], or justifying acts to not impose any liability on the actor [say, self-defence]. Entrapment, as academics note, cannot be placed in either bracket without problems. What's more, I think that a defence in the conventional form would fail to adequately address the problem society faces when dealing with entrapment. In case of the Police entrapping individuals, it is an abuse of process. The law is supposed to preventing crime, not manufacturing it [see, Rumpole and the Alternative Society (1978)]. 

Private Entrapment is again an abuse of process but for different reasons. It questions the basic notions of privacy we are accustomed to in a liberal society, and constitutional encouragement by Indian courts is a cause for concern no matter what the case may be. Persisting with such encouragement of lies and deception only fosters easy reliance on these means, as opposed to conducting a thorough inquiry. Thankfully, the Supreme Court in Rajat Prasad [see previous post] recognised this and asks for a completely remote person to conduct the operation. The fear of attendant liability should deter those with an ax to grind, but only time will tell how effective it is.

I would like to acknowledge Ms. Deekshitha Ganesan [IV Year, B.A.LL.B. (Hons.)] for her help with these posts.