Health is defined as a state of complete physical, mental and social well-being
and not merely the absence of disease or infirmity.
- Mental health has been defined as, "a state of balance between the
individual and the surrounding world, a state of harmony between oneself and
others, a coexistence between the realities of the self and that of other
people and that of the environment."
- This may amply be substantiated through the words of Kandel, "There can
be no changes in behaviour that are not reflected in the nervous system and
no persistent changes in the nervous system that are not reflected in
structural changes on some level of resolution.
Everyday sensory experience, sensory deprivation, and learning can probably
lead to a weakening of synaptic connections in some circumstances and a
strengthening of connections in others."3 In contrast to mental health there is
a term "mentally-ill" or "Insanity".
There is no mental disease called insanity in the eyes of law.4 Insanity is a
legal term used to designate the condition of certain people who exhibit
particular symptoms of mental diseases or mental disorder or mental derangement.
A patient may be psychotic, but the law acts upon the assumption that he is not
insane until there is a judicial determination that he is, the burden of the
same lies on the person who contends before the court of justice that he/she is
Where insanity as a defense in criminal cases is concerned, many medical men
believe that the question before the court is whether or not the accused is
insane, i.e., psychotic, at the time of the occurrence of the crime. If he is
insane at the time of the trial proceedings, many doctors say that he is not fit
to stand or face the trial of the court of justice or in some cases not in
position to give answer to questions put by the prosecution to accused, and if
he were insane at the time of committing the crime, they would say that he is
not guilty because of insanity. Such is not the case.
The law is not concerned primarily with the question of existing psychosis. The
law's concern is with responsibility5 - does the accused suffer from mental
disease which is so severe that he ought not to be held responsible for his act?
That is why it is very hard for a party to establish the insanity in the case,
and sometimes even harder for a judge to determine the question of insanity.
The present paper focuses on medico-legal aspect of insanity and its
introduction and also discuss the various causes of mentally ill health. There
is an urgent need to understand the various facets of insanity to provide free
and trial to the accused.
Definition Of Insanity
It is very difficult task to give exhaustive and precise definition of the term
'insanity'. Even the Court determine the question of insanity on the state of
mind of the person or in as much as the law requires of him to affirm whether
the particular individual is either incapable of knowing the nature of the act
and incapable of knowing that he is doing wrong or contrary to law.6 But, it has
been equated by the courts to mean insanity.7
The term insanity, however, carries different meaning in different contexts.
Thus, the term 'insanity' is wider in nature, not narrower in nature. It also
describes varying degree of mental disorder. Indian Lunacy Act (1912) has no
relevance today, as the advances in medical science have dictated corresponding
advancement in the related legal provisions insanity was formerly thought to be
affected by 'the moon', hence the term 'lunacy'- in Latin, luna means moon).8
The Act was amended in 1987 and was renamed as Mental Health Act, 1987 with the
aim to consolidate and amend the law relating to the treatment and care of
mentally ill persons and to make better provision with respect to their property
The following terms have been used in the Act:
Asylum, Lunatic, Criminal Lunatic
Nursing Home/ Psychiatric Hospital, Mentally Ill Persons,
Mentally Ill Prisoner
Psychiatric Hospital or nursing home is a hospital for the mentally ill persons
maintained by the government or private party with facilities for outpatient
treatment and registered with appropriate Licensing Authority. It does not
include any general hospital or general nursing home established or maintained
by the Government and which provides also for psychiatric services.9
Meaning of Mentally Ill Person
The expression "mentally ill person" means a person who is in need of treatment
by reason of any mental disorder other than mental retardation.10 Thus under the
act only those persons are mentally ill who are exposed to psychiatric
treatment. In terms of it, one is considered mentally disordered person simply
because he or she is in need of psychiatric treatment or one who receives
This definition however, is inadequate, for it excludes many people who for one
reason or another are potentially diagnosable as mentally ill. Moreover, as
Thomas Szasz has shown "people are often committed to mental hospitals and
receive psychiatric care, for the convenience of society rather than because of
an inherent illness".11
The "mentally ill prisoner" means a mentally ill person for whose detention in,
or removal to, a psychiatric hospital, psychiatric nursing home, jail or other
place of safe custody, an order referred to in section 27 has been made.12
The illness and treatment criteria of mental disorder are least satisfactory.
They depend heavily on the correct interpretation of terms foreign to lawyers.
Their usefulness in the court can be questioned, and they are virtually
meaningless elsewhere. Many people with mental abnormalities do not receive
medical help; treatment may seem inaccessible to some of them.
Some people seek help for reasons other than having an abnormality. Most people
are diagnosed as mentally ill by clinicians such as fear of failure, worry,
hypochondria, depression and agitation in this category of cases; people are
aware of their distress and are able to express it. All these people may be
categorised as mentally ill on the basis of their receiving treatment as per the
definition of mental illness.13 Apart from this, psychiatric diagnosis as a
criterion of mental illness has several flaws, we shall mention three: first
mental health specialists do not always agree on diagnosis.
Secondly, as with psychiatric treatment, only a limited number of persons from
among the sick population are diagnosed as mentally ill; thirdly, although
mental health professionals decide who is to be hospitalised, the individuals'
family and community decide who is to be diagnosed. In this sense, the
psychiatric diagnosis and treatment criterion shares the short comings of clear
definition of mental illness.14
The definition of mental illness does not include mental retardation, sleep
walkers and epileptics. In a broader sense disability includes both mental
illness and mental retardation. Mental illness is a condition, which is
considered amenable to treatment. The jurisprudence of law of insanity is based
upon principle of Furiosis Nulla Voluntas Est
i.e., a mad man has no will
and he is like one absent -Furiosus Absentis Low Est
. As per William
Blackstone, a mad man is punished by his own madness - Furiosus Furore Sui
Various Tests Of Insanity
The defence of insanity has been in existence since the 12th century.15 However,
it has been recognised as an argument for pardon or a way to mitigate a sentence
but not as legal defence claiming exemption from criminal liability. There are
certain tests for the defence of insanity some of them are obsolete in the
present time and few of them have laid down the new principle for the defence of
insanity in various criminal law jurisdiction of the world.
For example, in R. v. Charlson
16 automatism was recognised as a defence
to a criminal charge of maliciously causing grievous hurt under Section 20 of
the Offences Against Persons Act, 1861. The accused hit his son aged ten over
the head with a mallet and threw him out of a window. It was established that
the accused might have been suffering from a cerebral tumour which would cause
acts of impulsive violence.
The court accordingly gave a verdict of not guilty. Besides the automatism the
courts have developed certain tests like wild best test, good and evil test,
insane delusion test, right and wrong test, Mc Naughten test, irresistible
impulse test, model penal code test, product test, federal test etc. in
determining the mental insanity.
These tests need detail deliberation:
- Wild Beast Test:
It was the first test to check insanity that was laid down in R v. Arnold17 in
1724, Tracy, J., King Edwards court, first formulated the foundation of a
defence of insanity when he instructed the jury that it must acquit by reason of
insanity if it fond the defendant to be a mad man which he described as "a man
that is totally deprived of his understanding and memory, and doth not know what
he is doing, no more than an infant, than a brute , or a wild beast, such a one
is never the object of punishment".18
- Good and Evil Test:
This test was laid down in R v. Madfield.19 The test laid down in this case is
"the ability to distinguish between good and evil.20 In this case the accused
was charged for treason for attempting to kill the king. The defence pleaded he
was not able to distinguish between good and evil and the 'wild beast test' was
unreasonable. Later, he was acquitted.
- Insane Delusion Test:
The insane delusion test was the second test concerning the defence of insanity.
It was laid down by the House of Lords in the Hadfield case.21 In this case,
Hadfield was charged for high treason in attempting the assassination of king
George III. The counsel for the accused Mr. Erskine was successful in proving
that the accused wassuffering under the insane delusion, a mental disease and
thus obtained the
verdict of not guilty. The counsel pleaded that insanity was to be determined by
the fact of fixed insane delusions with which the accused was suffering and
which were the direct cause of his crime.
- Test of Capacity to Distinguish Between Right and Wrong:
In Bowler's case,22 the House of Lords formulated the test of capacity to
distinguish between right and wrong.23 In this case, Le Blanc, J., charged the
jury that it was for them to determine whether the accused, when he committed
the offence was incapable of distinguishing right from wrong or under the
influence of any illusion in respect of the prosecutor which rendered his mind
at the moment insensible of the nature of the act he was about to commit.24
since the decision in the Bowler's case, the courts have laid more stress on the
capacity of the accused to distinguish right from wrong, though they had not yet
definitely formulated this test in very clear terms until the Mc Naughten case
decided in 1843.25
- Mc Naughten Test:
The foundation for the law of insanity was laid down by the House of Lords
in 1843, in M'Naughten case.26 In that case, the House of Lords formulated
the famous Mc Naughten Rules on the basis of the five questions, which had
been referred to them with regard to the defence of insanity.
The reference came to be made in a case where Mc Naughten was charged with
the murder by shooting of Edward Drummond, who was the Pvt Secretary of the
then Prime Minister of England Sir Robert Peel. The accused Mc Naughten
produced medical evidence to prove that, he was not, at the time of
committing the act, in a sound state of mind.
He claimed that he was suffering from an insane delusion that the Prime
Minister was the only reason for all his problems. He had also claimed that
as a result of the insane delusion, he mistook Drummond for the Prime
Minister and committed his murder by shooting him.
The plea of insanity was accepted and Mc Naughten was found not guilty, on
the ground of insanity. The aforesaid verdict became the subject of debate
in the House of Lords. Therefore, it was determined to take the opinion of
all the judges on the law governing such cases. Five questions were
subsequently put to the Law Lords.
A comparison of answers to question no. 2 and 3 and the provision contained
in section 84 of the IPC, 1860 would clearly indicate that the section is
modelled on those answers.
following were the main principles:
- Every person is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary is established.
- To establish the defense of insanity, it must be clearly proved that at the time of committing the crime, the person was so insane as not to know the nature and quality of the act he was doing or if he did not, he did not know that what he was doing was wrong.
- The test of wrongfulness of the act is in the power to distinguish between right and wrong, not in abstract or in general, but in regard to the particular act committed.
In R. v. Quick and Paddison,28 the appellant, a nurse at a mental hospital, was
charged with assault occasioning actual bodily harm to a paraplegic spastic
(physically disabled because of cerebral paralysis) patient at the hospital. The
accused pleaded not guilty to the assault on the ground of automatism.
found that the accused had been a diabetic since the age of seven and, on the
morning of the day in question, he had taken insulin as prescribed by the
doctor. The accused had taken a small breakfast and drinks including whisky and
a quarter of a bottle of rum before the assault took place. Medical evidence
showed that at the time of assault the appellant was suffering from hypoglycaemia, a deficiency of blood sugar, after an insulin injection.
the appeal, the Court of Appeal held that the accused is entitled to plead
automatism but not insanity. In order to sustain a defence of insanity on the
ground that the accused was suffering from a disorder of the mind, the accused
had to show a malfunctioning of the mind of transitory effect caused by the
application to the body of some external factor, such as, violence, drugs,
including anaesthetics, alcohol and hypnotic influence, which could not be said
to be due to disease.
The mental condition from which the appellant alleged that
he had been suffering, had not been caused by his diabetes but by the use of
insulin prescribed by the doctor; the alleged malfunctioning of his mind had
therefore been caused by an external factor and not by a bodily disorder in the
nature of a disease of mind.
- Irresistible Impulse Test:
The irresistible impulse test usually appears as a
third prong of the traditional Mc Naughten test. This volitional prong broadens
Mc Naughten test by including as insane actors those who act of irresistible
uncontrollable impulses. According to typical jury instructions, an irresistible
impulse must" completely deprive the person of the power of choice or
Consequently, "if the accused would not have committed the act had
there being a ... policeman present, he cannot be said to have acted under an
irresistible impulse." This prong, adopted in many Mc Naughten jurisdictions,
draws much criticism on the ground that psychiatrists and philosophers have
difficulty discerning between resistible and irresistible criminal urges.30
Various Terms Used In Court
- Delusion: It is false or erroneous belief, in the face of contrary
evidence, is held with conviction and unmodifiable by appeals to reason or logic that
would be acceptable to persons of the same religious or cultural background.31
Delusions may be of grandeur or exaltation, of suspicion, of depression, of
reference, of jealousy, and of infidelity. Delusion of grandeur and delusion of
persecution are often together in the same person.
For instance, a man who
imagines himself to be very rich may also imagine that his enemies are
conspiring to ruin him financially. Delusions are considered to be the product
of pathological process in the brain.32 This can be categorised as 'primary/
autochthonous' and 'secondary'. The former appears relatively sudden, whereas
the latter is considered to be a further development within the delusional
For example, the initial belief may be that the police are watching him
day and night whereas the explanation for such a belief may rest in the
underlying belief that the authorities do not wish that the secret information
which he has been holding about the aliens be divulged. Mullan has given the
- They are held with absolute conviction
- The individual experiences the delusional belief as self-evident and regards it as of great personal significance.
- The delusion cannot be changed by an appeal to reason or by contrary experience.
- The content of delusions is unlikely and often fantastic.
- The false belief is not shared by others from a similar socioeconomic group.
Delusions are very important from the medico-legal point of view, as they often
affect the conduct and action of the sufferer, and may lead him to commit
suicide, murder or some other crime. The judge and the lawyer attach great
importance to the presence of delusions as the sign of insanity. Hence it is
essential for a medical man to carefully make a note of any delusions he has
been able to elicit during the examination.
In some cases, individuals may carry
out violent actions in a calculated way, believing that a vengeance is being
exacted while in others, anger may express itself explosively. Culpability may
be determined by the contents of the delusion. The Madras and Bombay High Court
have held that a person who is not insane but is merely suffering from some kind
of obsession or hallucination, cannot invoke Section 84 in his favour.33
brutality and ferociousness of the act by itself cannot lead to the conclusion
of insanity.34 The accused killed two women by cutting their necks with an axe
without any reason. Evidence showed that he suffered from similar attacks of
disorder earlier too. After the incident he was heard saying that he was haunted
by a God to do what he did. The plea of insanity was accepted and the accused
was directed to be kept in a mental hospital.35
- Hallucination:36 Hallucinations are perceptions in the absence of an
external stimulus. They can affect any sensory system, and they sometimes
occur in several systems concurrently. When perception is altered,
hallucinations, illusions and often delusions are frequently experienced
together. Hallucinations are experienced by many normal people under unusual
Auditory hallucinations range in complexity from hearing
disturbed sounds (Voice)37 such as whirring noises and muffled whispers to organised
sounds/discussions about the patient. Simple auditory hallucinations are
commonly associated with organic psychosis such as delirium and toxic and
Deafness can produce hallucinations consisting of
noises or formed music. Visual hallucinations occur in a wide variety of
neurological and psychiatric disorders, including toxic disturbances, drug
withdrawal syndromes, focal CNS lesions, schizophrenia, etc. Olfactory and
gustatory hallucinations (hallucinations involving smell and taste,
respectively) have most often been associated with organic brain diseases,
particularly with the uncinate fits of complex partial seizures.
In Kanbi Kurji
Duba v. State38 the accused was suffering from a delusion or hallucination that
he was a pure-blooded Suryavanshi and Arjun of the Mahabharat. On the day of the
nothing had happened to provoke the accused. His relations with his wife and his
eldest son were by no means unfriendly or uncordial. Still he brutally killed
his wife and eldest son. Immediately after killing then, he addressed the
Sarpanch of the village as 'Bhishma Pitamaha' and told that he had killed 'Bhangdi'
(�meaning thereby his wife) and 'Karna' (meaning thereby his son).
did not conceal the blood-stained crowbar and the chorna on his person and
showed no feeling of remorse or repentance for what he had done. It was held
that these circumstances indicated that though the accused was conscious of the
nature of the act committed by him, he was not in a position to appreciate and
realise that his acts were wrong or contrary to law and he was entitled to the
benefit of Sec, 84 of the Code.
- Illusion: An illusion is a false interpretation by the senses of an
external object or stimulus, which has a real existence. For instance, a man
may imagine a string hanging in his room to be a snake, or may, in the dark,
mistake the stem of a tree on the roadside for a ghost. A sane man may
experience illusions but, by closer investigation and his judging power, he
is capable of correcting the false impression. An insane person cannot do
He believes the illusion to be a reality and bases his conduct on that
assumption. An illusion by itself is not a sign of madness but, owing to
madness, the patient lacks the power or resolution to examine his illusion.
Illusions of sight, hearing and other senses may occur in cases of mental
disease. Illusion may be of three types:
Completion illusions are seen in human tendency to complete a familiar and
Affect illusions can be understood in context with the prevailing mood state.
Pareidolic illusions are those where images are seen from shapes, e.g., seeing
human faces in the clouds.
- Impulse:39 It is " a sudden and irresistible force compelling a person
to the conscious performance of some action without motive or forethought."
Normally, when a man intends to do any particular act, he usually tries to
weigh its consequence and then decides whether he should accomplish it or
not. If he finds that the consequences are unfavourable for that very particular act, he can
restrain himself and will not undertake that act.
An insane man has no balance
of mind to use the reasoning faculty, and commits the act as soon as the idea
occurs to him. He has no power to control it, however bad the consequences may
be. It is possible that he may repent of his action afterwards. Under the
influence of an irresistible impulse, one may commit any form of crime, e.g.,
suicide, homicide, theft, incendiarism or any perverted sexual act. Impulses are
commonly met with in cases of imbecility, dementia, acute mania and epileptic
Irresistible Impulse merely indicate loss of control and not indicative of
unsoundness of mind.40 From legal point of view every minor mental aberration is
not insanity.41 Irresistible Impulse or impulsive insanity has never been
accepted as defence under Section 84 unless it is attributable to unsoundness of
mind.42 However, a view is expressed that compulsive State of mind be taken into
account while quantifying punishment.
Similarly, it is held that a crime
attended with a mere agitation of mind,43 or an uncommon ferocity44 does not
necessarily lead to an inference that it had affected mental capacity of a
person. An act committed because of extreme anger does not bring its doer under
the ambit of defence of insanity.
- Obsession:45 An obsession is an idea, image, affect, impulse or movement
that appears as a mental content with a subjective sense of compulsion,
overriding an internal resistance. The important characters of obsessions
An obsession may be in the form of any of the following:
- The individual realises that they are absurd
- The individual struggles to get rid of those.
- The individual experiences anxiety; to control the anxiety.
- The individual knows/realises that it is not part of his personality to entertain such ideas. This is what is termed as 'ego-alien' character of obsession.
- Obsessional thinking: Obsessional ideas, thoughts, images, memories, questions or ruminations often appear as counter impulses directed against a situation, e.g., the compulsive obtrusion of obscene pictures while praying.
- Obsessional impulses: These are impulses urging the person to perform certain actions that obtrude compulsively into the conscious awareness in spite of resistance. For example, obsessional checking of the doors and windows, impulse to utter obscene words, etc.
- Obsessional acts: Here, acts are usually carried out on the basis of obsessional impulses or fears; for example, obsessional cleaning and washing because of morbid fear of dirt. The individual feels that by doing obsessional acts. in a prescribed way he can get rid of the fear. As the doubts keep on increasing, the rituals also become endless, ultimately interfering with the patient's daily life.
- Panic: Panic attack is a circumscribed episode of severe state of anxiety lasting minutes to hours. Subjectively, panic is characterised by feelings of utter terror. Individual isolated panic attacks may be common in general public. Panic attacks may be seen more regularly and more severely as a part of panic disorder or in association with other anxiety disorders.
- Irritability: It is an unpleasant feeling state in which the person feels an inner discomfort. It may exist purely as a feeling or be behaviourally associated with reduced control over temper. Irritable persons often lash out at others, usually verbally but sometimes, physically too.
- Lucid Intervals: A lucid interval (LI) is the period of
time between regaining consciousness after a short period of
unconsciousness.46 This is a period occurring in the course of mental
disease, during which there is complete cessation of the symptoms of
insanity, so that the individual can judge his acts soundly, and becomes
legally liable for his deeds.
In criminal cases it is, however, safer not to regard such an individual
responsible for any offence, for it is, sometimes, very difficult to judge
whether he was suffering from some mental aberration at the time of
committing the offence. Lucid intervals are commonly met with in melancholia
and mania. In the extradural haemorrhage,47
there may be lucid interval (latent interval) before clinical signs and symptoms
appear. Associated brain damage may, however, cause uninterrupted coma from the
time of injury.
When there is lucid interval, it maybe longer than the average 4
hours of faster arterial bleeding of the epidural haemorrhage. In fact, there is
no upper limit to this interval as the acute subdural haemorrhage may merge into
chronic condition, which may recur after weeks or even months. In rare cases,
they may develop as fast as an extradural haematoma and become fatal by the same
mechanism of brain displacement within hours. Where an insane person had lucid
intervals, the burden of proving that he was of unsound mind.48
- Legal Insanity and Medical Insanity:
Distinction: A distinction is to be made
between legal insanity and medical insanity.49 A court is concerned with legal
insanity and not with medical insanity.50 According to medical science, insanity
is another name for mental abnormality due to various causes and existing in
various degrees. Even an uncontrollable impulse driving a man to kill or wound
comes within its scope.
But a man, whom the medical science would pronounce as
insane, does not necessarily take leave of his emotions and feelings. Hope,
ambition, revenge, etc., may still govern his mind. Fear may exercise its
influence over him and threats may have a deterrent effect. Such persons, though
insane, would refrain from committing any act of violence or mischief if more
powerful men are present.51 It is not every form of insanity or madness that is recognised by law as a sufficient excuse.
Indeed, nothing short of particular
degree of insanity, as laid down in Section 84, Indian Penal Code would bring a
case within the exception, all other forms of insanity, and all other minor
aberrations of mind, which are recognised by the medical science as amounting to
madness, are excluded in the eye of law.52 There can be no legal insanity unless
cognitive faculties of the mind are, as a result of unsoundness of mind, so
completely impaired as to render the offender incapable of knowing the nature of
the act or that what he is doing is wrong or contrary to law.53
A person may be
a fit subject for confinement in a mental hospital, but that fact alone will not
permit him to enjoy exemption from punishment. Crotchetiness of cranks, feeble
mindedness, any mental irresponsibility, mere frenzy, emotional imbalance, heat
of passion, uncontrollable anger or jealousy, fits of intense hatred or revenge,
moral depravity, dethroning reason, incurable perversions, hypersensitive
excitability, ungovernable fits of temper, stupidity obtuseness, lacks of
self-control, gross eccentricity and idiosyncrasy and other similar
manifestations, evidencing derangement of mental functions, by themselves, do
not offer relief from criminal responsibility. These are forms of mental
deficiency which will not excuse the commission of the crime.54
It is only
unsoundness of mind, which materially impairs the cognitive faculties of the
mind, that can form a ground of an exemption from criminal responsibility.55 For
purposes of the criminal law, the emphasis is, therefore, on unsoundness of mind
which incapacitates the person from knowing the nature of the act or that he is
doing what is either wrong or contrary to law.56
Causes Of Mental Ill Health
At this time, scientists or legal jurists do not have a complete understanding
of what causes mental ill health or insanity. If you think about the structural
and organizational complexity of the brain together with the complexity of
effects that mental illnesses have on thoughts, feelings, and behaviours, it is
hardly surprising that figuring out the causes of mental illnesses is a daunting
The fields of neuroscience, psychiatry, and psychology address different
aspects of the relationship between the biology of the brain and individuals' behaviours, thoughts, and feelings, and how their actions sometimes get out of
control. Through this multidisciplinary research, scientists are trying to find
the causes of mental illnesses. Once scientists can determine the causes of a
mental illness, they can use that knowledge to develop new treatments or to find
From numerous dissections and investigations, the following are the main
causes of mental ill health or insanity: 57
Heredity: This is the most frequent cause of insanity. It depends largely upon the condition of the parent at the time of procreation. It is inherited more through the mother than through the father, and may show atavism as in other diseases. It is not necessary that the offspring of an insane person should show signs of insanity. It may only show some nervous disorder in the form of nervous excitement, hysteria, epilepsy, etc. It is also true that the parent of a nervous temperament may have an insane child.
Thus, even though a mental disorder may run in a family, there may be considerable differences in the severity of symptoms among family members. This means that one person in the family may have a mild case, while someone else has a more severe case of the mental disorder. Mental disorders, however, do not follow typical patterns of inheritance.58 It is at the root of many social and theological as well as medical problems and the importance of which can never be overestimated. It is very true that individual preserves some of his family characteristics. It is a fact that physical and mental diseases, vicious habits and tendencies, and local weakness, do reappear under various conditions in the line of family descent.
Marriages: Child marriages, especially among Hindus, are often conducive to insanity owing to the physical and nervous strain of premature sexual indulgence. Consanguineous marriages are apt to produce insanity as they contribute largely towards the perpetuation of bad hereditary influences. Moreover, the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 have put restrictions on the marriage of persons with mental illness, which are proved to be detrimental to patients and their families.60
Impaired Vitality: The various causes which tend to impair the general vitality of the individual and consequently to render him more susceptible to the bacterial infection may be classed as the predisposing causes of insanity.
Absence of moral Training and good Breeding: These also tend to predispose to insanity. Persons who have not received proper moral training due to poverty, unattractive personality traits or any other social issues and who have not been properly brought up according to their social status in life within the society, are generally lacking in free will and self-control, and easily become victims of bad influences.
The capacity for an individual to develop and flourish is deeply influenced by their immediate social surroundings
- including their opportunity to engage positively with family members, friends or colleagues, and earn a living for themselves and their families
- and also by the socio-economic circumstances in which they find themselves.
Negative experiences within our family or social circle can have a huge impact on our ability to cope and our tendency to become mentally ill.61 Separation or divorce or the loss of a parent or sibling is extremely painful. Finding ways to cope and adjust to the changes wrought by these events is critical for everyone, but particularly for youth. Children that experience stress from poverty and abuse and neglect are vulnerable to developing depression, anxiety and antisocial behaviours that may continue into adulthood.
Physical Causes: The physical causes leading to insanity can be subdivided into two main groups, viz., non-toxic and toxic.
- Non-toxic Causes: Among people predisposed by heredity or a neurotic temperament the non-toxic causes, such as exhaustion resulting from severe physical or mental strain, or serious illness, or cerebral haemorrhage and injuries of the skull, may affect the brain, both pathologically and psychically, and may induce mental disorder.
- Toxic Causes: The toxic causes may be grouped under the following heads:
- Toxic substances resulting from excessive formation or deficient elimination of morbid waste products owing to disordered metabolism.
- Toxines generated in the system by microbic infection.
- Toxaemia produced by the excessive use of certain drugs, such as cannabis indica, opium, morphine, cocaine, alcohol, etc. Thus, substance abuse has been linked to increasing the risk or causing the onset of mental illnesses. Long-term abuse of drugs or alcohol is a common trait amongst people who suffer from mental illnesses.62
Psychic Causes: Intense emotional disturbances, such as love, hatred, passion, disappointment, etc., are the psychic causes, which are liable to cause mental derangements, especially among those who are already predisposed to it.
The wider socio-cultural and geopolitical environment
in which people live can also affect an individual's, household's or community's
mental health status, including levels of access to basic commodities and
services (water, essential health services, the rule of law), exposure to
predominating cultural beliefs, attitudes or practices, as well as by social and
economic policies formed at the national level; for example, the on-going global
financial crisis is expected to have significant mental health consequences,
including increased rates of suicide and harmful alcohol use.
social or gender inequality and conflict are examples of adverse structural
determinants of mental well-being. Despite some claims to the contrary,
environmental influences have been found to operate within the normal range, and
not just in relation to extreme environments (although, for obvious reasons, the
effects of the latter are greater). Environmental effects have been shown not
only for influences in infancy, but also for influences in middle childhood and
even in adult life.
Civil And Criminal Responsibility
- Contract: Sections 6, 11 and 12 of the Indian Contract Act, 1872, deal
with the responsibility of the insane with regards to contracts. The general
theory of the law in regard to contracts made by parties affecting their
rights and interests is that there must be full and free consent in order to
bind the parties. Consent is an act of reason combined with deliberation. It
is upon the ground that there is a lack of rational and deliberate consent
that transactions of persons of unsound mind are held to be void.64.
If at the time of making a contract either party is of unsound mind and the
fact is known to other party and it is shown that advantage is taken
contract is invalid,65 it is voidable at the option of unsound mind person.
On the other hand if other party is unaware of this fact and contract is a
fair one then it is valid. Insanity which develops subsequent to the
contract does not make it invalid unless steps are taken for its dissolution
or the performance of service becomes impossible.
- Family Law and Person with Mental Illness: Marriage integrally links an
individual with society through ties of blood and affinity. Unsoundness of
mind can result in the nullification or dissolution of a marriage under
various personal laws in India. In view of Sections 5 and 12 of the Hindu
Marriage Act, 1955, the marriage of a person, if he or she although capable
of giving a valid consent to his or her marriage suffers from mental
disorder of such a kind or such an extent as to be unfit for marriage and
the procreation of children, is voidable.
Under the Special Marriage Act, 1954, the grounds for marriage, divorce and
judicial separation are practically the same as those in the Hindu Marriage
Act, 1955. Under Muslim law, persons of unsound mind and minors can be
validly contracted into marriage by their legal guardian.
Such marriage is considered valid in the eyes of law. According to the
Dissolution of Muslim Marriages Act, 1939, a woman married under Muslim Law
is entitled to divorce on the ground if her husband has been insane for a
period of two years.
- Testamentary Capacity: Testamentary capacity is the legal status of
being capable of executing a Will, a legal declaration of the intention of a
testator with respect to his property, which he desires to be carried into
effect after his death.
The Indian succession act states that every person of sound mind not being a
minor may dispose of his property by Will.66 A married woman may dispose by
Will of any property which she could alienate by her own act during her
life.67 Persons who are deaf or dumb or blind are not thereby incapacitated
for making a Will if they are able to know what they do by it.68 A person
who is ordinarily insane may make a Will during interval in which he is of
sound mind.69 No person can make a Will while he is in such a state of mind,
whether arising from intoxication or from illness or from any other cause,
that he does not know what he is doing.70
- Code of Civil Procedure: The Code of Civil Procedure, 1973, Order XXXII
laid down the procedure for the suits by or against the persons of unsound
- Competency as a Witness: Under the IEA 1872, all persons shall be
competent to testify unless the Court considers that they are prevented from
understanding the questions put to them, or from giving rational answers to
those questions, by tender years, extreme old age, disease, whether of body
or mind, or any other cause of the same kind.71 A lunatic is not incompetent
to testify, unless he is prevented by his lunacy from understanding the
questions put to him and giving rational answers to them.72
- The Indian Penal Code, 1860 � Section 84: Section 84 of Indian Penal
Code says that nothing is an offence which is done by a person who, at the
time of doing it, by reason of unsoundness of mind, is incapable of knowing
the nature of the act, or that he is doing what is either wrong or contrary
to law. The policy of the law is to control not only the sane, but so far as
is possible, also the insane.
It is not, therefore, every person mentally diseased who, ipso facto, is
exempted from criminal responsibility. Such exemption is allowed only where
the insane person "is incapable of knowing the nature of the act, or that he
is doing what is either wrong or contrary to law." This Section lays down
the legal test of responsibility in cases of alleged unsoundness of mind. It
is by this test, as distinguished from medical test, that the criminality of
an act is to be determined.
- The Code of Criminal Procedure, 1973: The Code of Criminal Procedure,
1973, Chapter XXV laid down the procedure for the trial of unsound person.
The concept of insanity is essential to medical and legal jurisprudence. Yet,
the concept of insanity in terms of medico-legal aspects, as it currently
stands, cannot be justified under current mechanism. For consistency, the
criminal justice system should be able to justify every concept under the law.
This project clearly stated that while the legal insanity defense is based on
unchanging archaic legal rules, modern understanding of the concept of mental
illness is rapidly growing.
This creates a conflicting view point of medical as well as legal jusrists
between what is scientifically known about mental illness and how the mentally
ill are punished under the criminal and civil justice system.
For the legal system to align with current understandings of mental illness, the
legal system must rely more on the scientific and medical communities. The law
must combine legal and medical knowledge to draft a defense that is modern,
flexible, and most importantly, justifiable.
Therefore, with the development of psychiatry as recognized branch of medical
science, the opinion regarding what constitute unsoundness of mind should be
revised. We need a new phrase or expression or a term to denote a particular
kind or degree of insanity or mental disorder which produces legal consequences.
The problem is to connect the medical concept of mental condition of a
particular individual with the legal tests of criminal responsibility.
- https://www.who.int/about/governance/constitution (last visited on Nov 15, 2022)
- Sartorius N., "Mental health in the early 1980s: some perspectives" Bulletin of the World Health Organization, 61 (1), 1 � 6 (1983).
- Eric R. Kandel, "A New Intellectual Framework for Psychiatry" The American Journal of Psychiatry p 457-469 1998.
- H. Parsons, "Insanity � A Medical-Legal Enigma?" Dalhousie Medical Journal p 15-20 1967.
- The Indian Penal Code, 1860 s. 84.
- 7 Bharat Kumar v. State of Rajasthan, (2004) Cr LJ 1958 (Raj); Pulu Mura v. State of Assam, (2004) Cr LJ 458 (Gau).
- 8 Krishna Vij, Textbook of Forensic Medicine and Toxicology Principles and Practice (Elsevier, Gurugram, Edn. 5th 2011).
- 9 The Mental Health Act, 1987, sec. 2(g)
- 10 Id. at sec. 2(l).
- 11 Thomas S. Szasz, "The Myth of Mental Illness", 15 American Psychologists (1960) pp.113- 118.
- 12 Supra Note at sec. 2(m)
- 13 Subhash Chandra Singh, "Legal and Ethical Rights of Persons with Mental Disability: An Overview" 32 Indian Socio-legal Journal (2006) pp.27-40.
- 14 Scott describes the following criteria in determining the question of mental illness:
Among these, the most frequently used definition of mental illness is exposure to psychiatric treatment. For details, see William A. Scott, Research Definitions of Mental Health and Mental Illness, 55 Psychological Bulletin (1958) pp. 1-45.
- Exposure to psychiatric treatment;
- Social maladjustment;
- Psychiatric diagnosis;
- Objective testing.
- 15 Judd F. Sneirson and Black Rage, "The Criminal Law: A Principled Approach to a Polarized Debate," 143 University of Pennsylvania Law Review (1995) p. 2251 at p. 2264
- 16 (1955) 1 All ER 859.
- 17 (1724) 16 St. Tr. 695.
- 18 Christopher Slobogin, "An End to Insanity: Recasting the Role of Mental Disability in Criminal Cases" 86 Virginia Law Review (2000) p 1199 at p. 1208.
- 19 (1760) 19 St. Tr. 885.
- 20 Gerry Ferguson, "The Insanity Defence in Canada, Malaysia and Singapore: A Tale of Two Codes" 17 Journal of Malaysian and Comparative Law (1990) p.1 at p.12.
- 21 (1800) 27 St. Tr. 128.
- 22 (1812) 1 Collinson Lunacy 673.
- Hava B. Villaverde, "Racism in the Insanity Defence," 50 University of Miami Law Review (1995) p. 209 at p. 212.
- Michael S. Moore, Placing Blame: A General Theory of Criminal Law (Oxford University Press, 1998) p. 35.
- Lindsay Farmer, Criminal Law, Tradition and Legal Order (University Press, Cambridge, 1997) pp. 132-134.
- (1843) 8 Eng Rep 718.
- K I Vibhute, P S A Pillai's Criminal Law, (Lexis Nexis, Gurgaon, Edn. 14th 2019).
- (1973) 3Al1 ER (347) (CA).
- United States v. Kunak, 17 C. M. R. 346, 359 (C. M. A. 1954).
- Herbert Wechsler and Jerome Michael, "A Rationale of the Law of Homicide" 37 Columbia Law Review (1937) p.701 at p.754.
- Deep Chand v. State of Haryana, Crl. Appeal No. D-670-DB of 2007.
- See Supra Note at 8.
- Re Manickam, AIR 1950 Mad 576: (1963) Mah LJ (Notes) 24 (DB).
- Dayabhai Chagganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563: (1964) Cr LJ 472 (SC).
- 35Niman Sha v MP, 1996 Cr LJ 3395 (MP); Venugopalan Venu v Kerala, 1996 Cr LJ 3363 (Ker).
- See Supra Note at 8.
- Thambammal vs Subbayammal (Died) on 17 May, 2017 Madras High Court.
- AIR 1960 Gujarat 1 : 1960 Cri. L.J. 1200.
- Charles W. Mathias et. al., "Behavioural Measures of Impulsivity and the Law" PubMed Central 2012 available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3279729/ (last visited on Oct 15, 2023).
- Re Raja Gopala, AIR 1952 Mad. 289.
- 41 Bharat Kumar v. State of Rajasthan, (2004) Cr LJ 1958 (Raj); Pulu Muru v. State of Assam, (2004) Cr LJ 458(Gau).
- 42 Parapuzha Thamban v. State of Kerala, (1989) Cr LJ 1372 (Ker.); Ram Adhin v. Emperor, AIR 1932 Oudh 18; State of Assam v. Inush Ali, (1982) Cr LJ 1044 (Gau); Sidheswari Bora v. State of Assam, (1981) Cr LJ 1005 (Gau.).
- 43 Gourishankar v. State, (1965) 68 Bom LR 236.
- 44 Gour Chandra v. State of Orissa, 1989 Cr LJ 1667 (Ori.) .
- 45 See Supra Note 8 p 411.
- 46 De Leeuz., et. al., "History of an abusive head trauma including a lucid interval and a retinal hemorrhage is most likely false" Am J Forensic Med Pathol 2013 Sep;34(3):271-6 available at:
https://pubmed.ncbi.nlm.nih.gov/23896724/#:~:text=A%20lucid%20interval%20(LI)%20is,symptoms%20caused%20by%20that%20injury (last accessed on Oct 19, 2023).
- 47 See Supra Note at 8.
- 48 Tilok v. Mahandu (144 IC 741).
- 49 D.N. Rou v. State, 1970 Cr LJ 529(532).
- 50 Jinnappa v. State of Mysore, (1962)2 Cr LJ 250; 1961 Mys LJ 288.
- 51 Pancha v. Emperor, AIR 1932 All 233(235).
- 52 Durga Charan Barik v. State, AIR 1963 Ori 33: (1963)1 Cr LJ 213.
- 53 Amrit Bhusan Gupta v. Union of India, AIR 1977 SC 608 (611).
- 54 Hazara Singh v. State, AIR 1958 Punj 104(108): 1958 Cr LJ 555.
- 55 D.N. Roy v. State, 1970 Cr L J 529(533): 74 Cal WN 231.
- 56 Channabasappa v. State of Mysore, AIR 1957 Mys 68.
- 57 Rai Bahadur Jaising P. Mod, A Textbook of Medical Jurisprudence and Toxicology (Butterworth &Co. India Ltd., Edn. 6th , 1940).
- 58 https://www.healthychildren.org/English/health-issues/conditions/emotional-problems/Pages/Inheriting-Mental-Disorders.aspx (last accessed on Nov 15, 2022).
- 59 See Supra Note 57.
- Indira Sharma, Karri Ramma Reddy et. al., "Marriage, Mental illness and law", Indian Journal of Psychiatry v. 57 2015.
- My Mental Health, Causes of Mental Illness‖ - http://www.mymentalhealth.ca/Default.aspx?tabid=839
- Mental Health, Causes of Mental Illness - http://www.mentalhealth-jami.org.uk/causes-of-mental-illness/
- Michael Rutter, How the Environment Affects Mental Health‖, Br J Psychiatry Jan 2005, 186 (1) 4-6.
- Aishwarya Padmanabhan, "Unsoundness of Mind in Contract" - http://www.manupatra.com/roundup/325/Articles/Unsoundness%20of%20Mind%20in%20Contract.pdf
- Dr. Prateek Rastogi, "Civil Responsibilities of Mentally ill", JIAFM, 2007 29 (3); ISSN: 0971- 0973.
- The Indian Succession Act, 1925, s. 59.
- Id. s. 59, Exp.1.
- Id. s. 59, Exp.2.
- Id. s. 59, Exp.3.
- Id. s. 59, Exp.4.
- The Indian Evidence Act, 1872, sec. 118.