Anushka PS
Introduction
The law governing consent as a defence presents a predominant issue- whether criminal law can adopt consent as a valid defence to crime. The answer to this question remains largely elusive as it diverges into matters of public policy and societal morality. Moralistic theories of criminalization consider the primary objective of criminal law to be the inhibition of criminal conduct, irrespective of the effects of such conduct on other individuals.[1] These theories, adopted by the modern state, question the foundational rationality of utilizing consent as a general defence to crime. They criminalise acts on the basis of their intrinsic immorality, irrespective of the actual effects of these acts having been vitiated by consent. Therefore, these theories render the defence of consent vacuous.
This issue is compounded further when consent is adopted as a partial defence to murder. Courts across jurisdictions have grappled with the enormous considerations posed by this defence- particularly the balance between individual liberty on the one hand and public morality on the other. Consent as an exception to murder is codified in Exception 5 to Section 300 of the Indian Penal Code (“the IPC”). The exception categorically states that “culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.” [2] Simply put, a convict who kills a person will be held guilty of culpable homicide and not murder when the deceased has proffered valid consent to the infliction of death.
This paper will critically examine the Indian courts’ one-dimensional interpretation of this defence. To that end, in Part I, the paper will demonstrate the paucity of public morality considerations in the Indian application of Exception 5. Further, it will demonstrate the insufficiency of such judicial reasoning in comparison to substantive law in England and the US. In Part II, it will investigate the nature of circumstances to which the defence under Exception 5 of Section 300 of the IPC is applied, and an analogy with “suicide pacts” in England will be drawn. The objective of such a comparison is to argue for introducing a robust standard of judicial review of consent in such cases.
This paper will use the word “victim” to connote individuals who have consented to the use of harm against themselves, even if the word itself suggests the existence of reluctance which is usually non-existent in cases involving consent. This paper will not delve into definitional aspects of consent and will take it to mean “informed acceptance.”[3]
Part I: Liberty and Criminal Suppression
The legislative attitude towards consent as a defence to murder is bereft of policy considerations. While several provisions of the IPC relating to consent demonstrate a “paternalistic” approach, such paternalism seems to be lacking in Exception 5 to Section 300. Further, judicial interpretations of the exception have also been keenly liberal. In the succeeding prongs, the paper illustrates these phenomena.
A. Legislative Incongruence on Consent
While dealing with the defence of consent, judicial interpretation has assumed two conflicting strands. The first prioritizes the value of individual liberty and considers the individual to be the best arbiter of his own interests. For instance, in Schloendorff, J Cardozo emphatically stated that every human being of sound mind and adult age has a “right to determine what should be done with his body.”[4] This potentially includes the right to sacrifice one’s body for pleasure, pain or even death. Such respect for personal autonomy ushered in by liberalism has buttressed the legal acceptance of consent as a defence against crimes comprising bodily infractions.[5]
The second, often termed the paternalistic approach, considers the primary objective of criminal law to be the suppression of societal evil.[6] Crime is thereby defined as a social phenomenon, with society bearing an interest in its suppression. This approach allows legal intervention for the protection of civic virtue and the moral worth of citizens. Consequently, law imposes limits on the extent to which an individual can consent to the infliction of harm upon himself.
The provisions of the IPC entrench paternalistic attitudes. Sections 87 to 89 declare consent to be an effective defence to acts done in good faith, and they explicitly exclude acts intended at causing death of the consenting victim. Therefore, these sections can be considered as embodying tenets of public morality. On the other hand, peculiarly, Exception 5 to Section 300 of the IPC allows one to consent to his death (or the risk of death).[7] The offender responsible for the death will be held guilty of manslaughter, as against murder.[8] This distinction is relevant since the sentence imposed for culpable homicide is significantly lower than that for murder.[9] This ambiguity- that is, the exclusion of consent to death in Sections 87-89 on the one hand, and the permissibility of consent as a partial defence to murder under Exception 5 on the other, raises questions on whether Exception 5 has to be interpreted in light of the principles underlying Sections 87 to 89. More importantly, should the scope of Exception 5 be restricted through interpretation by taking into consideration notions of public policy? The next part argues in the affirmative.
B. Judicial Interpretation of Exception 5: Too Liberal?
Judicial enforcement of the partial defence under Exception 5 is incomprehensive. Courts have posited a single standard for fulfilling this section’s requirements- the victim’s consent must pass the test of close scrutiny by the court. In Queen Empress v Nayamuddin, one of the earliest cases concerning the subject, a full bench of the Calcutta High Court held that the defence under Exception 5 would apply only if the victim, having full knowledge of the facts, was determined to suffer death with such determination persisting until the moment of his death.[10] Later, the court in Vijay v State of MP reaffirmed this principle.[11] In this case, the accused being heavily indebted, killed his wife and then attempted to kill himself. The only circumstance indicating the presence of consent was the absence of sounds of protest by the wife.[12] The bench held that consent could not be presumed from the wife’s conduct.[13] Additionally, Exception 5 was to be accorded “strict, and not liberal interpretation.”[14] In Ambalathil Assainar, a woman acquiesced to her husband killing her on her refusal to return to her matrimonial home.[15] This consent was held to be “conditional” by virtue of it having been given in exchange for her not returning to her matrimonial home. The court declared such conditional consent invalid, holding that consent under Exception 5 had to be “unconditional and without reservations.” Therefore, the onus was on the accused to prove beyond a reasonable doubt that the victim had consented to her death. It is pertinent to note that courts have failed to explicate upon the “close scrutiny” standard. Therefore, the ingredients of this standard remain elusive.
Similarly, in Rajesh Nair v State of Kerala, the accused strangulated his sister and mother in furtherance of a “pact.” He then surrendered himself to the police after failing to strangulate himself. The court declared the consent to have been “unconditional and unequivocal,” thereby falling within the ambit of the Exception 5 defence.[16] In Dasrath Parwan v State of Bihar, the accused failed his Class X exams thrice in a row and informed his wife about his decision to end his life.[17] His wife, a literate woman, asked him to “kill her before killing himself.”[18] The police arrested him before he killed himself.[19] The Court reviewed the circumstances and postulated that the wife’s consent was “informed,” thus constituting a valid defence under Exception 5. The Supreme Court in Narendra v State of Rajasthan held that the victim’s death appeared to be “in furtherance of an understanding between the accused and victim to commit suicide” and therefore, that the act fell under Exception 5.[20] In this case, the prosecution witness confirmed that the victim neither shouted nor raised an alarm while the accused stabbed her before stabbing himself. Here, the prosecution witness was the victim’s brother who had witnessed the act through the keyhole of the room. The victim was also an educated woman who was considered capable of gauging the consequences of her conduct. The gravity of these circumstances allowed the court to confirm the operation of the Exception 5 defence of consent.
Two elements are common in all the cases illustrated above. The first element concerns the absolute lack of discussion on whether consent should amount to a valid defence in such cases and the second deals with the standard of judicial review employed in such circumstances. The paper will address each of them in turn.
Part II: Consent to Murder: A Frivolous Defence Deserving Stricter Interpretation
Since the courts have interpreted Exception 5 strictly and not liberally, the defendant has to prove that the victim consented “unconditionally and in an informed manner.” However, it is to be observed that the courts have disregarded vital components in the debate surrounding the validity of consent to murder. While an investigation into the quality of the consent tendered is conducted, the courts do not evaluate whether consent can be a valid defence in such instances of murder – where people spontaneously agree to die at the hands of another- in the first place. That is, the courts entirely disregard the public interest in curbing murder and consequently ignore a fundamental tenet of criminal law- the protection of society. Below, I analyse various arguments that demonstrate how murder is inimical to public interest, and the attendant need for greater policy considerations in our jurisprudence.
A. Murder Threatens Public Interest:
There are several prominent arguments postulated in favour of decrying consent as a valid defence to murder. Lord Devlin has succinctly encapsulated one of these arguments: “The only reason why an individual cannot consent to an offence against himself is because crime is an offence against society. A murderer who acts upon the request or consent of the victim might pose no menace to others, but he threatens the greatest moral principle upon which society is based: the sanctity of human life.” [21] This argument considers consent invalid due to the intrinsically immoral character of murder. This argument has been utilized in cases like R v Donovan[22] and underlined in Halsbury, both of which state that consent cannot be a defence against harm that is “unacceptable to prevailing standards of morality.”[23]
The other argument flows from the seminal principle laid down by the British case of R v Brown. The court, while dealing with the validity of consent given to aggravated assault, noted that consent as a defence posed wider ramifications in criminal law than in a civil context.[24] In criminal law, the defence of consent was not absolute since “public interest in peace and good order” were also at stake in addition to the protection of individual liberty.[25] The defendant’s acts, despite being conducted in private, had deleterious effects on society since engagement in such acts would undermine public morals. Similar justifications are rampant in cases of atrocious assault and battery in the United States. In State v Shelley, the court considered the public to have an overriding interest in preventing aggravated assault and serious bodily injury, despite the victim having consented to the harm.[26] In State v George, the court stated that legalizing aggravated assault when consented to would frustrate the objectives of the criminal code.[27] It follows, in the interests of public policy, that a person will not be able to consent to murder- a crime more egregious than bodily assault. While the conventional principle is the inadmissibility of consent, the common law has made specific exceptions to “dangerous exhibitions” like martial arts, boxing, horseplay and others due to their intrinsically perilous and unstable nature.[28] [A3] Since these activities are inherently dangerous, the legislature allows the defence of consent to enable engagement in these activities without the participants being subject to a slew of criminal charges. Simply put, courts use public policy considerations to prohibit socially detrimental activities, after making exceptions for a few inherently dangerous activities traditionally engaged in by the public. The legislature has also introduced an exception for “suicide pacts.” [29] The legislation pertaining to the same will be examined in Part III.
B. Need for Policy Considerations in Indian Jurisprudence:
The aforementioned decisions argue against an extension of the consent defence to serious bodily harm and death. They grapple with considerations of individual liberty juxtaposed against public morality and demonstrate a nuance that is absent in Indian legislative and judicial deliberation on the issue. Indian courts have unquestioningly applied the defence under Exception 5 without attempting to delineate its ambit. An investigation into Sections 87 to 89 which explicitly exclude “death” from the ambit of the consent defence would be instructive in this regard. These sections allow consent to operate as a defence only in cases where an absence of intention to cause death can be proved. This demonstrates a legislative intent to restrict the ambit of valid consent. Such intent should guide the judicial interpretation of Exception 5. Exception 5 should be made applicable only in limited circumstances, as against all instances where valid consent is proved. This can be accomplished by positing the general principle as being the inadmissibility of consent as a defence to murder. The Indian courts could then make specific exceptions to this general principle for inherently dangerous activities including “recognized sports” and “suicide pacts.” Considerations of public policy and morality inherent in the very objective of modern criminal law can be given due regard through this approach. However, this approach would require altering the jurisprudence on the issue altogether. Therefore, the next part argues for inducting another viable alternative- the strengthening of the existing threshold test to determine the existence of consent under Exception 5.
Part III. Making the Indian Judicial Framework Surrounding Suicide Pacts More Robust
In this part, the paper posits two arguments. First, it argues that the situations which are ordinarily encompassed by Exception 5 fall within the definitional ambit of “suicide pacts” as defined in English jurisprudence. Next, it argues for making the existing Exception 5 test more robust by importing the three-pronged test utilized in the UK into Indian adjudication.
A. Extant Relationships Between Victims and the Accused: Suicide Pacts
If courts still intend to exonerate individuals using Exception 5, they have to proceed within the framework of “suicide pacts.” While the IPC does not define them, Indian courts have sometimes called them such with reference to jurisprudence in England.[30] These agreements include a common intention on behalf of both the accused and the victim to die together.
While UK law initially did not consider consent as a defence to murder, certain exceptions were introduced by the Homicide Act of 1957, as amended by the Suicide Act of 1961. Section 4(1) reads: “It shall be manslaughter, not murder, for any person acting in furtherance of a suicide pact between himself and another person to kill the other.” Section 4(2) imposes the burden of proof on the defendant to show the existence of a suicide pact between himself and the victim. Further, Section 4(3) defines a suicide pact as a “common agreement between persons having as its objective the death of all of them, irrespective of whether each should take his own life, but nothing done by a participant in a suicide pact shall be treated as done in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the act.” The clemency embodied by Section 4 bears a keen similarity to Exception 5- that is, both reduce the penalty from that of murder to that of manslaughter. Additionally, in India, the Exception 5 defence has mainly been applied in situations that fall within the definitional ambit of suicide pacts.
B. The English Standard of Judicial Review for Suicide Pacts:
Essentially, Section 4 requires the satisfaction of three elements for it to be a valid defence: first, the defendant must prove the existence of an agreement between the victim and the defendant to pursue the death of both. Second, the defendant must prove beyond reasonable doubt that he killed the victim pursuant to such agreement. Third, he must prove that the victim had a “settled intention” of dying in furtherance of the agreement. The House of Lords in R v Sciretta and R v Iannazzone emphasized that any individual seeking to avail the defence of this section had to prove the existence of all elements, failing which he would be held guilty of murder.[31]
C. A Need for Importing the Three-Pronged test into Exception 5 scrutiny:
In instances of suicide pacts, it is to be observed that the Indian courts apply only the third prong of the test elucidated above. That is, they enquire whether there was an established intention on behalf of the victim to die and whether there was continued consent towards the same. This has led to a reduction in the burden of proof incident upon the defendant. Considering the gravity of the crime being committed, Indian jurisprudence must attempt to incorporate the three-pronged test to allow an application of the defence under Exception 5. Suicide pacts must be considered a specific exception to the general inadmissibility of the consent defence to murder- and the defendant must additionally be necessitated to prove: a) the existence of a suicide pact and b) that he acted in pursuance of such. This would place a higher premium on the value of human life and deter the commission of such activities. Especially in periods of distress, suicide pacts increase drastically. A recent report released by the National Crime Records Bureau in 2020 indicates an increase of nearly 35% in family suicide pacts over the course of a year.[32] While more concrete jurisprudence is required to analyse the pervasiveness of the problem, this report is indicative of the prevalence of suicide pacts in India. In addition to deterrence, this higher standard of review would also facilitate the generalization of law applicable in similar circumstances.
Conclusion:
This paper has attempted to argue for a two-fold alteration to Indian jurisprudence involving consent as a partial defence to murder. First, it has argued for the rejection of the consent defence in light of principles of public morality. Second, it has posited that suicide pacts can constitute an exception to this general rejection of consent, provided the courts exercise a stricter standard of judicial review. Incorporating these suggestions into legislative and judicial analysis will make the legal framework comprehensive and robust.
[The author is a 2nd year BA LLB student in NLSIU, Bangalore.]
[1] Morris R Cohen, ‘Moral Aspects of the Criminal Law’ (1940) The Yale Law Journal 49(6) 987–1026 https://doi.org/10.2307/792227 accessed 2 December 2022. [2] The Indian Penal Code 1860, Sect 302; The Indian Penal Code 1860, Sect 305 [3] JW Cecil Turner, Kenny’s Outlines of Criminal Law (18th edn, Cambridge University Press 2013) [4] Schloendorff v Society of New York Hospital 105 N.E. 92. [5] Law Commission Consultation Paper, Consent in the Criminal Law (Law Com No 139, 1995) [6] Joel Feinberg, The Moral Limits of Criminal Law: Offense to Others (Oxford University Press, 1984) [7] The Indian Penal Code 1860, Sect 300 Exception 5 [8] The Indian Penal Code 1860, Sect 300 Exception 5 [9] The Indian Penal Code 1860, Sect 300 Exception 5 [10] Queen Empress v Nayamuddin (4 ILR (1891) 18 Cal 484. [11] Vijay @ Chand Jain v. State of MP (1994) 6 SCC 308 [12] ibid. [13] ibid. [14] ibid. [15] Re: Ambalathil AssainarAIR 1956 Mad 97. [16] This illustrates the single standard of judicial review applied by the Indian courts- the determination of the presence of consent. [17] Dasrath Pawan v. State of Bihar AIR 1958 Patna 190. [18] ibid. [19] ibid. [20] Narendra v State of Rajasthan (2014) 10 SCC 248 [21] Patrick Devlin, The Enforcement of Morals (Oxford University Press 1965) [22] R v Donovan (1934) 2 K.B. 49 [23] Halsbury's Laws of England (Vol. 11 (1), Fourth edn, Reissue, Oxford University Press) [24] R v Brown [1993] UKHL 19 [25] ibid. [26] State v. Shelley, No. 52260-8-II Wash. Ct. App. Dec. 17, 2019 [27] State v. George, 937 S.W.2d 251 Mo. Ct. App. 1996 [28] Law Commission Consultation Paper (n 5); R v Aitken [1992] 1 WLR 1066 [29] Homicide Act 1957, s. 4 [30] Dasrath Parwan (n 18); Narendra (n 21) [31] R v Iannazzone [1983] 1 VR 649 [32] ‘Andhra Pradesh stands first in family-pact suicide deaths in India: NCRB’ (The Times of India, 30 October 2021) https://timesofindia.indiatimes.com/city/vijayawada/andhra-pradesh-stands-first-in-family-pact-suicide-deaths-in-india-ncrb/articleshow/87382516.cms accessed on 5 December 2022.
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