Case for objective standards to determine ‘grave and sudden provocation’ as exception to murder

The recent Supreme Court judgement on "sustained provocation" brings our attention to the need for objectivity in determining what constitutes "grave and sudden" under Exception 1 to Section 300 of the Indian Penal Code. 

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THE psychology of a human mind is a tapestry of emotions and vulnerabilities. While the cognizance of these emotions has been incorporated into the criminal justice system, the intricacies have, over time, been knitted by judicial intervention.

In August, the Supreme Court judgement in Dauvaram Nirmalkar versus State of Chhattisgarh applied the "sustained provocation" principle, which is an acknowledgment of the vulnerability of the mind to a provocation that builds up over time and is triggered by the last provocative act.

What is the law on grave and sudden provocation?

The law on homicide due to "grave and sudden" provocation is governed by Exception 1 to section 300. It states that the offender that causes death while being "deprived of the power of self-control" by a "grave and sudden" provocation, commits culpable homicide not amounting to murder. This provision itself has three exceptions: the offender should not have invited said provocation; the provocation should not have come in obedience to law or by a public servant within his powers; and it should not have been within the lawful right to private defence.

The specific portions of the law as interpreted by the judiciary must be considered.

What are the tests laid down by the Court?

The test of the nature of provocation has been laid down by the Supreme Court in its landmark judgment in K.M. Nanavati versus State of Maharashtra (1961). As this case is quite celebrated, I shall not go into the facts of the case, and focus on the principle that can be distilled from the judgment.

Firstly, the reasonable man test: whether a reasonable man, of the same sociological strata as the accused, would lose his self-control in a similar situation.

Secondly, provocation may be caused by words and gestures as well.

Thirdly, whether the state of mind of the victim, determined by previous conduct, warrants the interpretation of causing grave and sudden provocation.

Lastly, the provocation must be of such nature, as to not leave room for premeditation and contemplation, and the act must solely be rooted in the passion of the moment, of the accused.

This test is applied in most cases to ascertain culpability. This four-pronged test is largely subjective, except for the second part. Justice K. Subba Rao opined in the judgment that there is no objective criterion for "grave and sudden", but it largely depends on the context of the parties involved.

Recently, the Supreme Court reiterated in Yatendrasingh Ajabsingh Chauhan versus State of Maharashtra (2022) that to determine whether or not a certain act constitutes provocation of the requisite nature, the facts and circumstances of each case must be analysed.

It is essential to note that the graveness and suddenness of the provocation must both be simultaneous. This implies that firstly, the provocation must not only be grave but also sudden, and that it must be uninvited and unforeseen; secondly, the act of the accused must be derived from the provocation of such nature.

Also read: Grave and sudden provocation or a sudden fight: Supreme Court relies on landmark Nanavati case to give relief to a murder-accused

What is the role of the mental state of the accused?

The jurisprudence surrounding Exception 1 to section 300 largely revolves around, rather disproportionately, the mental state of the accused during the act, rather than the objective nature of the act. The requisites of the nature of the mental state have already been outlined. Largely, the accused, as a reasonable person, must cease to exercise reason under the influence of such provocation, as per the Allahabad High Court in Mahmood versus State (1960).

The test of whether a certain provocation is grave and sudden is a subjective one, with special emphasis on the context of the provocation and the societal background of the accused. The accused must have been in a position that does not leave with him the possibility of rational thought. This implies that if the accused, at the sight of someone who earlier committed an act, irrespective of how grave, loses control and causes death, s/they cannot avail the defence under the exception, as per the Supreme Court in Dattu Genu Gaikwad versus State of Maharashtra (1973).

Another aspect of their mental state is the lack of preparation on their part. The provocation must come unexpectedly; hence, the provision that the provocation must not be sought by the accused and must not be expected in any manner. This was reaffirmed by the Supreme Court in Bhura Ram & Ors. versus State of Rajasthan & Anr. (2008).

Therefore, we notice that the primary focus and tests of what constitutes 'grave and sudden' are largely subjective and contingent on the mental state of the accused.

What is problematic in the Supreme Court's reasoning in Dauvaram Nirmalkar?

In Dauvaram Nirmalkar, the accused was the brother of the deceased. The latter had a habit of drinking and abusing the accused, which led up to the night of the incident when the deceased was drunk and threatened to murder the accused. This led to the accused losing his self-control and delivering a blow on the scalp of the deceased using a pick-axe, leading to his death.

The judgment delivered by the Supreme Court stated that the case falls within Exception 1 of section 300, and that the act of the deceased constituted "grave and sudden provocation". The rationale used was that the gravity of provocation depends upon the series of abusive or provocative behaviour of the deceased, and does not hinge on the last provocative act. This is the "cumulative or sustained provocation test" which states that if there exists a sustained provocation that is grave in nature, then an act that serves as an immediate provocation would be sufficient to prove the applicability of the exception. Herein, it was stated that the abuse was grave, sustained provocation and the final threat was the final immediate act, meeting the requirement of both graveness and suddenness.

The issue with the provision is that there is no standard test of the gravity of the preceding event, and the span between the preceding events and the immediately provocative act. Whereas the test that exists is that of a reasonable man, it is highly subjective and with no guidelines for application, results in erratic outcomes.

In K.M. Nanavati, a cogent argument can be made that the final act of the deceased, where he stated, "Am I to marry every woman I sleep with?" fulfils the requirement of immediacy. The preceding incident, wherein the accused received the knowledge of the deceased sleeping with his wife, would qualify as grave and hence, the requirement of 'sustained provocation' would be met. Since there exists no objective metric of the sustained provocation test in terms of gravity and suddenness, the outcome becomes completely contingent on the judges and their perception of a 'reasonable man'.

What needs to change?

There has been comprehensive research on the issues of representation in the reasonable man standard. This includes the sexist connotations in its name itself. It has been highlighted that in cases under Exception 1 of section 300, the said 'reasonable man' should belong to the same class of society as the accused. It is highly improbable that the present strata of judges in the Indian judiciary, a panel of upper caste, upper class, mostly straight Hindu men, are likely to be able to factor in the socio-cultural and socio-economic factors affecting the mental state of an accused under this provision.

Also read: The conflicting intersection of the "reasonable man" standard and the battered woman syndrome

This leads to swathes of cases with varying judgments solely based on what constitutes grave, sudden and, most importantly of all, reasonable. This must be changed, and the 'reasonable person' standard should be replaced with, or at least supplemented by, an objective set of criteria to determine the gravity and suddenness of provocation. This can be in the form of an illustrative list, and guidelines as to what is a sufficient time period for the provocation to either cool down, or remain sustained. This can also be in the form of guidelines as to what is sensitive to certain groups and classes, and accordingly, follow a less stringent application of Exception 1.

Since the question here is of representation of sensitive groups, the set of rules or guidelines should come from the legislature, or on the recommendation of an appropriate committee, from the judiciary.

What is the change that must be brought in?

It is submitted that the present test of what constitutes grave and sudden is largely subjective, and may often hinge on the individual judges handling the case, owing to the subjectivity inherently present in the test itself. This is reflected in multiple cases wherein differential judgments have been pronounced with similar facts.

It must hence be rectified by an objective standard of the time period to constitute "sudden", an illustrative list of what constitutes "grave", and guidelines to introduce sensitivity towards various classes of society. These should supplement the 'reasonable person' test, to make it more objective, less arbitrary, and more equitable.