Indian Journal of Legal Research & Advancements Volume 1 Issue 1, October 2020 EXPATIATION OF ‘PROVOCATION’: READRESSING THE LANDMARK THAT OUTFLANKED THE LAW OF MURDER – A COMMENT ON ‘REGINA v. Kiranjit Ahluwalia’ Ritik Gupta* ABSTRACT Metaphorically, understanding with practicality makes the concept more explicable, and the same did the case of Regina v. Kiranjit Ahluwalia (“Ahluwalia”) on which the author will be commenting in this piece. Firstly, he will expound that how this judgment broadened the compass of ‘provocation’ and influenced the whole world through a new facet respecting domestic violence and then how the three appeals performed the interrogator, that grilled the legitimacy of directions placed in the precedents in conformance with the contemporary law. Secondly, he will scrutinise the fluctuations escorted due to the inducement of this watershed moment to statues and acts and why those became desiderata to bring into effect. Thirdly, he will draw a distinction in the context of ‘provocation’ and ‘diminished responsibility’ amongst English and Indian law, and discourse that why the latter needs an overhaul. Further, he will tag the tribulations which women have to bear when the law does not perceive the circumstance in all facets. Lastly, he will conclude in a concise way and portray the remainder. TABLE OF CONTENTS * The author is a student of B.A. LL.B. (Hons.) at Fairfield Institute of Management and Technology, GGSIP University, New Delhi. He may be reached at [email protected]. The views expressed in this article are solely those of the author and do not necessarily reflect the institution’s with which the author is affiliated. Page | 1 Indian Journal of Legal Research & Advancements Volume 1 Issue 1, October 2020 I.INTRODUCTION......................................................................................................................................................................................................................2 II. Ahluwalia: OVERHAULING THE CONNOTATION OF ‘PROVOCATION’..............................................................3 A. SOUGHT A VERDICT OF MANSLAUGHTER BUT CONVICTED FOR MURDER...........................................3 B. CRIMINAL APPEAL ON THREE DIFFERENT GROUNDS....................................................................................................4 1. SUDDEN AND TEMPORARY LOSS OF CONTROL........................................................................................................................................5 2. THE DEFENDANT’S CHARACTERISTICS............................................................................................................................................................6 3. DIMINISHED RESPONSIBILITY................................................................................................................................................................................7 III. POST Ahluwalia ERA: THE PRODIGIOUS VISION OF UNITED KINGDOM................................................... 8 IV. INDIAN LAW IN THE CONTEXT OF DEFENCE OF ‘PROVOCATION’ AND ‘DIMINISHED RESPONSIBILITY’........................................................................................................................................................................................................................9 V.CONCLUDING REMARKS.........................................................................................................................................................................................12 I. INTRODUCTION Page | 2 Indian Journal of Legal Research & Advancements Volume 1 Issue 1, October 2020 Deplorably, across the globe, domestic violence is a proverbial hardship through which, copious women undergo.1 Whilst men play the position of the ‘abuser’, some women do not even get a chance to commune their plight, preponderantly in pastoral zones as accessibility to any mode of media is zilch.2 But when the relentlessness of the act impedes assurance of the very survival of women, a provocative retort transpires, and this incitement can be as appalling as the deed of males. Another rationale3 for the materialisation of “provocation”4 maybe the repetitiousness coupled with the derangement of the vicious act.5 For the elucidation of the above argument, the author must go way back in 1989, an explicit exemplar of a provocative occurrence. 6 Kiranjit Ahluwalia (“Kiranjit”), a woman who continually felt not appreciated but victimised by virtue of her husband’s (“Deepak”) habitually atrocious deeds, on May 9 1989, positioned him on fire by hurling petrol in his bedroom and set it alight whilst he was asleep.7 Deepak, after tarrying excruciatingly died on May 15. Subsequently, Kiranjit’s trial started on November 29, 1989, at Lewes Crown Court ("LCC"), and in a 10-2 split decision, the LCC convicted Kiranjit of murder on December 7.8 The well-read judge then obliged upon her “the mandatory sentence of life imprisonment”.9 Following two years, Southall Black Sister (“SBS”) – an activist group of Asian and African-Caribbean women in Britain, and Justice for Women bolstered Kiranjit. As a result, she was granted leave to appeal in September 1991. The appeal was raised on three distinctive grounds altogether. Besides, Ahluwalia10engrossed too much “public attention”11 as this instance expounded the acmes to which a woman can be needled. Ahluwalia performed the scale in measuring the heights of provocation and yet, one of the landmarks in domestic violence cases. 1 UN WOMEN, Facts and figures: Ending violence against women, https://www.unwomen.org/en/what-we-do/ending- violence-against-women/facts-and-figures (last visited May 20, 2020). 2 Shaila Lohia, Domestic Violence in Rural Areas 51-53 (Shirin Kudchedkar and Sahiba Alssa, Pencraft International 1998). 3 Katherine O’Donovan, Defences for Battered Women Who Kill, 18 J.L. & SOC’Y 219 (1991). 4 See, Manju Lakhra v. State of Assam, 2013 SCC OnLine Gau 207 as this was the instance (as available on legal databases) where the defence of provocation was being taken into consideration at first. 5 George Mousourakis, Reason, Passion and Self-Control: Understanding The Moral Basis Of The Provocation Defence, 38 R.D.U.S, 218 (2007). 6 Krishna Khakhria, Kiranjit Ahluwalia: The woman who set her husband on fire, BBC NEWS (May 25, 2020, 10:40 AM), https://www.bbc.com/news/uk-47724697 (last accessed May 20, 2020). 7 Donovan, supra note 3. 8 R. v. Kiranjit Ahluwalia, unreported case, Lewes Crown Court, December 1989 (transcript: Hibbit and Sanders). 9 Id. 10 Taylor. J., R. v. Kiranjit Ahluwalia, (1993) 96 Cr App R 133 (hereinafter Ahluwalia). 11 Id. at 1, ¶1. Page | 3 Indian Journal of Legal Research & Advancements Volume 1 Issue 1, October 2020 This comment will critically evaluate the appeal made on all three grounds in England and Wales Court of appeal (Criminal Division) (“Court of Appeal”) and how it influenced the bringing of the alteration in the law of murder. Further, this piece will thrash out the extent to which the characterisation of provocation got expansive. II. Ahluwalia: OVERHAULING THE CONNOTATION OF ‘PROVOCATION’ Kiranjit, the appellant, was convicted and sentenced for murder by the court of the first instance, a decision which The Court of Appeal quashed, and granted leave to appeal on the grounds that expert evidence and psychiatric reports had not been acquainted with at the trial. 12 On September 25, 1992, a Retrial was ordered, to take place at the Central Criminal Court in London, at which Kiranjit was not found guilty of murder but manslaughter. A. SOUGHT A VERDICT OF MANSLAUGHTER BUT CONVICTED FOR MURDER At Kiranjit’s trial, she relied on the fact that her intent was to inflict pain on Deepak as to put him at the position on which she had been bearing the brutality but not to kill or doing equal to something which can escort him to death.13 Defence of provocation was second in line to position the defence tool but proved abortive. 14 Incongruously, also the prosecution’s inadequacy of producing evidence changed the whole stance of this case as no medical evidence was adduced before the court. Indeed, Kiranjit had been confronting violence for past ten years which perceptibly can make anyone do something like this, be it in a provocative manner or mental commotion15 and hence the advocate on behalf of the appellant relied on the “whole history of ill-treatment throughout the marriage, culminating on the night in the deceased’s refusal to speak to her his threat to use the hot iron upon her, his threat to beat her the next morning if she did not provide him the money and his clear indication that he wished the marriage to end”16 but since attestation failure (emphasis supplied) was the rationale, nothing could be proved. Thus, Kiranjit was convicted of murder. B. CRIMINAL APPEAL ON THREE DIFFERENT GROUNDS 12 Khakhria, supra note 6. 13 Ahluwalia, Taylor J., supra note 10. 14 Id: “The judge's direction on provocation was correct. The Duffy direction was good law and the judge had directed the jury on the issue of the abuse suffered by the appellant and thus the jury would have considered the effect of this in reaching their verdict. The appeal on the grounds of provocation was therefore unsuccessful." 15Read Keerthana Medarametla, Battered Women: The Gendered Notions of Defence Available, 13(2) MANUPATRA 109, 115-117 (2017), https://www.manupatrafast.com/articles/articleSearch.aspx# (last accessed June 2, 2020). 16 Ahluwalia, Taylor. J., supra note 10.