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Widening The Defense Of Insanity In Indian Criminal Law

A Plea for accommodating the genuine irresistibility.

The human brain is ever evolving and in fact can be said to be among the list of fast evolving things on the planet. Human minds continuously evolve and differentiate what things they should do for their betterment and what not. Sometimes some of them fail to do so when their brain is not in a sane state i.e. they are in an insane state.

In India, S. 84 of the Indian Penal Code defines the defense of Insanity which pardons an act done by a person of unsound mind if he/she at the time of commission of that act was incapable of knowing the nature of act, or that what he is doing is either wrong or contrary to law."[1] To get exemption from liability the accused must establish the above conditions.

These conditions imply that the accused's mental illness should be of the level that it could not distinguish his own actions which in my view is a very narrow understanding of insanity. This section is drafted on the basis of M'Naghten Rules which were framed by a jury way back in the 1840s in UK courts.[2] Many countries have ceased to follow these rules or amended.

The time has come for India to revisit these old rules to widen the scope of Legal Insanity. With the passage of time and development of the human race various mental conditions have also come forward which our old present statute fails to identify some genuine mental insanity like volitional insanity (Irresistible Impulse) of certain accused which in my view should fall under purview of S. 84 by expanding its scope to meet the objective behind which this section was framed.

This paper will focus on how some accused who lacked mens rea still were convicted because they were able to identify what is right and what is wrong but their mental condition prevented them to control their acts. The paper will argue to convert this medical condition of irresistible impulse to legal insanity as it does not fulfil the conditions laid down by ancient law. We will also look at the aspect of how courts can take a liberal view towards such accused as this mental condition is difficult to prove in the court.

The present M'Naghten rules are largely criticised by number a of medical practitioners/scientists, eminent lawyers and academicians because it only takes into account the ability to distinguish the right and wrong of the person claiming relief under insanity i.e. only cognitive defects. Insanity is a very wide concept which not only affects these cognitive faculties but also affects the emotions and ability to control the act done by the person in an insane state. In a way insanity affects his/her whole personality and various serious conditions of insanity give emotional currents which can lead to the commission of certain acts which the person cannot control.[3]

In Ambi v State of Kerala[4] it was held that for an act to constitute a crime it must be done with guilty mind. But S.84 of IPC fastens criminal liability on a person who did not possess requisite mens rea or free will just because he/she could not qualify the right/wrong test. Therefore, S. 84 is in violation with the common standard set by criminal jurisprudence to determine criminal liability.

Before I argue further about widening the scope of the defence and including irresistible impulse in the framework we make it clear that we are not arguing for the cases where accused claims insanity for acts committed out of delusion, social evils and fear or anger which is way graver in nature.[5] For example in the case of Muhammad Husain v. Emperor[6], accused out of anger killed her wife as he found her with his father and then claimed the defence but court rightly convicted him.

In the case of Queen v. Bishendharee Kahar[7] court rightly convicted the accused who under delusions of superstitions sacrificed her son and believed that her son would come back after 3 days with the blessings of the deity. Even though he had no mens rea to kill his son, but acquittal would promote such superstitions in the society and thus court convicted the accused who claimed the defence of insanity for such an act. Similarly in the case of Karma Urang v. Emperor[8], the accused killed his father because Goddess Kali ordered him in his dream that you have to kill your father otherwise he may kill you. We only want that some genuine mental conditions should be covered.

The outdated approach of M'Naghten rules to insanity has been amended by some countries and various committee reports, law commission reports, pronouncements of various courts across the world etc. have urged for the same. Courts in Ireland through its judicial pronouncements have time and again suggested and observed that there is no reason to not include volitional insanity as a defence in criminal law.

For example in the case of People (Attorney General) v. Hayes, Justice Henchy said that, the defence of insanity is available to a person whose mental disorder prevents him from exercising a free volition as to whether he should or should not do that."[9] Similarly the Supreme Court of Ireland took the same view to entitle psychopath for the defence who had difficulty in controlling their violent desires in People (DPP) v. O'Mahony[10].

The Royal Commission on Capital Punishment (1949-53) in their report in their report recommended to widen the scope of M'Naghten Rules, "The jury must be satisfied that, at the time of committing the act, the accused, as a result of disease of the mind or (mental deficiency), (a) did not know the nature and quality of the act or (b) did not know that it was wrong or (c) was incapable of preventing himself from committing it."[11]

This report in 1953 suggested to include the capacity to control the act and no other mental conditions and thus the time has come in India to do away with right-wrong test and widen the scope of insanity. England, the country where these rules were born, is on the verge to widen their scope by adding volitional insanity in the present rules.

It's draft criminal code states, "A person is not guilty of an offence if � (a) he acts in a state of automatism, that is, his act � (ii) occurs while he is in a condition (whether of sleep, unconsciousness, impaired consciousness or otherwise) depriving him of effective control of his act."[12]

There are some jurisdictions in commonwealth nation which, after deliberate consideration, have included condition of irresistible impulse in the defence of insanity because of these following two reasons: First, it would be morally wrong to punish someone who is not at fault for acts committed as a result of their mental compulsion.

Second, empirical research and advancements in psychiatry show that mental illness can impair a person's ability to control their actions in accordance with the law even though they are conscious about it. Legislative amendments have been made in this regard in South Africa and the State of Queensland in Australia where an accused is not held criminally liable[13] once the opinion of the expert suggests that there are chances of the accused having suffered from heavy emotional current due to which he lost control over his own conduct.

The International Criminal Court of which various countries across the world are its members has its own statute which also has the section on defence of insanity. It reads as: "[A] person shall not be criminally responsible if, at the time of that person's conduct the person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct."[14]

Even an international court who need consensus of many member nations recognizes irresistible impulse as a defence. The International Criminal Court is the court which adjudicates the cases of graver nature and still holds a liberal view for the accused.

Now, let's discuss how narrowness of Section 84 IPC is not allowing the courts in India to follow the directions or observations of the Supreme Court of India, topmost binding authority as to not deviate from right wrong test of the Section 84. The point of conflict is where the genuine cases of irresistible impulse fall prey to the narrowness of law.

As we know that to establish a plea of insanity the onus is on the accused to prove that he was/is an insane person. But Indian Courts in the series of judgement have told that accused has to only prima facie suggest the possibility of him/her being an insane and then the onus shifts to the prosecution to establish the guilt and inapplicability of the defence.[15]

In the case of Dahyabhai Chaganbhai Thakker vs State of Gujarat[16], the supreme court of India laid down that from the evidence presented to court by any party if accused is able to raise a reasonable doubt of his insanity and not proving it conclusively beyond reasonable doubt, he is still entitled for an acquittal as prosecution afterwards did not establish the guilt and discharge its general burden of proof.

The Orissa High Court in the case of Butu @ Madhua Oram vs State[17] followed the same course as the Supreme Court and observed that to be acquitted from criminal charges, the accused is not required to establish each requirement of Section 84 of the IPC beyond a reasonable doubt. However, it is sufficient if the pieces of evidence support the hypothesis that Section 84 requirements may be likely.

We have many cases where the conduct of the accused, expert evidence, doctor's opinion, other evidence etc. favoured accused and created a doubt for insanity but still courts deviated from the observation of Supreme Court in Dahyabhai because it was accused who could not satisfy all the conditions of Section 84. Following are some genuine cases of insanity which deserved acquittal because doubt of insanity was established but acquittal was denied because they knew the nature of the act but could not control their act:

In Queen-Empress v. Lakshmana Dagdu[18], the Bombay High Court wanted to acquit the accused who was reasonably an insane in their view but could not acquit due to constraint which Sec. 84 put on them and observed that even though doctors supported the accused mental condition and just because it was a wrong committed out of irresistible impulse court could not grant acquittal as it wasn't enough to fall under the purview of narrow scoped Sec. 84 IPC.

Similarly in State of Kerala v. Ravi[19] trial court acquitted the accused because he had no motive to kill the victim but it was irresistibility which made him do that. Trial court also took into consideration all other evidence while acquitting him but his acquittal was revered by the high court only because it did not fall in the purview of Section 84.

The Supreme Court in Brij Kishore Pandey vs State of Uttar Pradesh[20] reduced the punishment to imprisonment for life from death penalty when plea of irresistible impulse was raised. Therefore we can say that even courts in a way were open to some amendments in this regard as it took cognisance of irresistible impulse.

Due to all the above reasons we proceed to request the Supreme Court of India to take cognizance in this regard if the legislature still remains silent on this issue. India also need changes and this amendment of including irresistible impulse in insanity defense is already bought in other countries as discussed above and there was no miscarriage of justice noticed due to this change. We don't want more innocent people like Lakshmana Dagdu to be punished who were favoured to be acquitted by expert psychiatrists and doctors.

  1. The Indian Penal Code, 1860.
  2. R. v. M'Naghten (1843) 10 Cl & F 200: 8 ER 718.
  3. K.M. Sharma, 'Defence of Insanity in Indian Criminal Law' (1965) 7(4) Indian Law Institute.
  4. Ambi v State of Kerala (1962) CriLJ 135.
  5. K.M. (n 3).
  6. Muhammad Husain v. Emperor (1913) 14 Cr. L.J. 81.
  7. Queen v. Bishendharee Kahar (1867) 7 W.R. 6.
  8. Karma Urang v. Emperor A.I.R. 1928 Cal. 238.
  9. Stanley Leo, 'The Incapacities of Insanity' (2001) 36 Irish Jurist.
  10. People (DPP) v. O'Mahony (1985) IR 5.
  11. K.M. (n 3).
  12. Stanley Leo, 'Penal Code Defences: Lessons from Sri Lanka' (2017) 86 NLSI Review.
  13. Soumya AK, Maitreyi Misra & Anup Surendranath, 'Shapeshifting and Erroneous: The Many Inconsistencies in the Insanity Defence in India' (2021) 14 NUJS L Rev 1
  14. Stanley Leo, 'The Insanity Defence In The Criminal Laws Of The Commonwealth Of Nations' (2008) Singapore Journal of Legal Studies.
  15. Debashree Saikia, 'Insanity Defense in Criminal Law in India' (2018) 1 Int'l JL Mgmt & Human 24.
  16. Dahyabhai Chhaganbhai Thakker vs State Of Gujarat (1964) AIR 1563.
  17. Butu @ Madhua Oram vs State (1985) II OLR 398.
  18. Queen-Empress v. Lakshman Dagdu (1886)10 ILR Bom 512.
  19. State of Kerala v. Ravi (1978) KLT 177.
  20. Brij Kishore Pandey vs State of Uttar Pradesh (1971) 3 Supreme Court Cases 931 (2).

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