Pre-Menstrual Syndrome Induced Insanity – A Double-Edged Sword
In a judgment with wide-ranging consequences, the Rajasthan High Court (“High Court”) in India has accepted the defence of Pre-Menstrual Syndrome (“PMS”) induced insanity into the criminal jurisprudence of India. At face value, it could be argued that this is a progressive development in the law. However, a close inspection of the judgement and the evidence relied on by the judges reveals that the defence is based on stereotypes that could entrench rather than eliminate sexism in the criminal justice system.
The case concerned a woman accused of kidnapping and pushing three children into a well. Two of the children survived, one died. The defence made a case for acquittal by arguing that the defendant was suffering from PMS induced insanity, which rendered her incapable of understanding the nature of her actions.
While this argument did not find favour with the Trial Court in 1982, it found favour with the High Court thirty-two years later. The High Court recognised PMS as a defence which can attract Section 84 of the Indian Penal Code. Section 84 states that “nothing is an offence when done by reason of unsoundness of mind”. The Court was convinced that PMS rendered the accused unsound, thereby making her actions involuntary.
Since the defence of PMS is rooted in biology, it needs to be treated with caution. The invocation of biological differences has been one of the most effective tools to justify sex discrimination against women in jobs, education and public life. Historically, women’s bodies and experiences have been medicalised, more often than that of men. Studies record how the reproductive process was made the centre of female pathology, and how medical theories would frequently link women’s experiences and actions to their ovaries or their uterus. Menstruation and PMS in particular were diagnosed as factors that induced different forms of madness in women. This was in turn used to stereotype women as being at “mercy to their raging hormones”. A number of documented studies note how these negative beliefs still persist, and how menstruation continues to be associated with raging hormones and debilitation of mental awareness. It is important, therefore, to recognise that introducing PMS as a legal category, is likely to entrench these stereotypes.
Further, the legalization of PMS can result in deflecting attention from other social and economic factors that determine crime, and invalidate legitimate feelings of women like anger and frustration. For instance, in the two British cases, where PMS was accepted by the Courts as a defence, the women involved had been at the receiving end of frequent violence from the men they killed.
Legally recognizing PMS may benefit individual women, who may be able to use it in their defence. However, its recognition will have deleterious effects in the long term, since its premise and assumptions only entrench and perpetuate the discrimination of women further.
The High Court judgement doesn’t discuss these inherent tensions and conflict that beset the inclusion of PMS as a defence. Instead, the court relies on few research papers which simply push to include PMS as a category within criminal jurisprudence without initiating a conversation on the credibility, viability or dangers of using PMS induced insanity as a defence. A problematic aspect of the judgement and an indication that this could be a regressive development in the law, is that the judgement repeatedly describes PMS as “unusual” and as a “psycho neurotic disease”. This is despite the fact that there is no medical consensus on PMS as a ‘disease’ of the mind. The judgment has also failed to notice the sexist undertones and the overt gendered prescriptions in the testimonies of doctors, who reasoned that aggravated PMS manifests in unmarried women and women with no children.
The introduction of such legal categories in criminal jurisprudence by the Rajasthan High Court without any holistic research on its socio-political ramifications marks a dangerous trend in Indian jurisprudence, and must be stopped as early as possible.