Menstruation (or periods), which is generally considered taboo, now can be a legally recognised cause of women committing crime. The Rajasthan high court has acquitted a woman murdering a child on the grounds of insanity triggered by premenstrual syndrome (PMS) at the time of commission of the crime. While one must congratulate the court for recognising an ailment that is generally unacknowledged in India, that’s about where the compliments ought to end.In an inconsiderately written judgment, the court has relied upon the most easily available research articles on the topic, which are minimal in terms of rigor and dated, to say the least. What is more appalling is that the court has completely failed to look into the cases in which this defence was originally used and which form, in most part, the basis of the articles relied upon by the court. One must also be alarmed by the court’s complete lack of anticipating the consequences of its approval of this ground of criminal defence.The defence of diminished criminal responsibility owing to PMS has been a subject of some discussion and debate in other common law jurisdictions of the UK, US, Australia and Canada. However, as the judgment by Rajasthan high court acknowledges, “the law has not much developed in India … yet the accused has right to plead and probabilise such defence…”On the basis of history of use of this defence in other countries, this judgment can only be seen as unleashing of a double-edged sword.It was in the 1980s that use of PMS as a criminal defence hit the headlines in the UK and the US; which is around the same time when the Kumari Chandra case (the case in question) was filed as well. In 1981, Sandie Smith raised the plea of insanity on the ground of PMS; the appeals court did not accept the plea of premenstrual syndrome giving rise to automatism. The court’s concern for doing so was not only lack of evidence but also its desire to exercise control over the accused to ensure that she received treatment. The second major case that caught attention was that of Christine English, who in a rage killed her lover by running him down with her car. English was given a less harsher sentence on the grounds of diminished criminal liability owing to severe PMS.This ground of defence has also been used in Canada for cases involving minor crimes such as shoplifting and major ones such as murder. However, the use of this defence has been a subject of controversy wherever it has been used. In the US, the plea was taken up in certain minor civil and criminal cases but it was only raised in one major criminal case of People v. Santos, which never went to trial as the accused bargained a plea. So, the defence was never really tested.Though most common law jurisdictions seem to have had a brush with the defence of PMS-induced insanity, it is not a plea that caught much traction in the legal community. In fact, it has largely been controversial owing to its anti-feminist potential. Moreover, back in the 1980s, when the plea was being experimented with in each of these jurisdictions, the medical data to corroborate PMS as a disease was also insufficient. Since then, PMS has established itself as a duly recognised disease in the western medical dictionaries.Nevertheless, PMS persists as a plea that has the potential of being used frivolously, to the detriment of women. Women’s hormones have always been an easy excuse to exclude them from workforce and otherwise subject them to inequity. In fact, in the 1980s and early 1990s some of the newspaper headlines in US and UK served as indicators of the negative impacts when they referred to the defence of PMS as return of the “Raging Hormones” or referred to the accused as “Dr Jekyll and Ms Hyde” etc.In the Indian scenario, the judgment doesn’t seem to have caught the fancy of the media or men, as yet. Nevertheless, in a society where women have to work immensely hard to establish themselves as equals, the courts would do well to ensure that such a plea is not accepted ordinarily and without sufficient medical evidence. At the same time, it needs to be ensured that this “return of hormones” doesn’t stigmatise the standing of women in general.Of course, the empirical data on the subject of PMS available today is far more than that was available three decades earlier. However, its potential for being stigma hasn’t altered. If this disorder can be used by women to plead not guilty, it can also be used against her in, say, a child custody matter to deny her the custody of her child or to tarnish her image as a victim of hormones in matrimonial disputes (let’s not forget the most pathetic of grounds used in divorce cases against women simply to tarnish their image in court).The judgment rightly observes that in a criminal case, the defence only needs to “probabalise” but its poor drafting has ensured that it provides no protection from frivolous usage of PMS as a ground in other proceedings. It is now for any other court that may deal with the issue, whether in civil or criminal proceedings, to ensure that the burden of proof is strict and the standing of a woman is not sullied.Ameyavikrama Thanvi is a lawyer and was practicing at the Supreme Court of India and the Rajasthan high court till May, 2018. Currently, she am pursuing LLM at Georgetown University Law Center in Washington DC.
