Sudden fight, consent and the principle of comparative responsibility in the Indian penal code

Abstract

Sudden fight is one of four partial defences to murder in the Indian Penal Code. It was a late addition which lacks the qualifying provisos and illustrations that constrain applications of the partial defences of provocation and excessive force in private defence. A survey of recent decisions of the Indian Supreme Court suggests that sudden fight has the potential to subvert the principled limits that constrain the other partial defences. Sudden fight has no equivalent in other Commonwealth jurisdictions. It can be argued that it is an anachronism that should be eliminated from the law of murder. This essay argues in favour of its retention. The partial defences of provocation, excessive defence, sudden fight and consent are unified by an underlying principle of comparative responsibility that extenuates murder when the offender was seriously wronged by the victim or acted with the consent of the victim to die or engage in an activity that was likely to result in death. A set of provisos and illustrations is proposed that will constrain applications of the partial defence of sudden fight in conformity with the principle of comparative responsibility.