Nothing is an offense 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.
This is section 84 of the Indian penal code (IPC), these few lines carries
with it the oldest criminal defense known to mankind, the insanity defense.
Recognized by all developed legal systems in the world, the insanity plea is
also shaped by every country it touches. Undergoing changes being modified
according to need of the land it touches, like a shore gives shape to the
sea. We will examine the kinks in its armor and the needs of today it needs
The 'common' law problem
The insanity defense has came long way from it's mention in the code of Hammurabi
to the development of a separate field of study known as forensic
psychiatry. From the time it was used by the ancient Greeks and Romans there
was no distinction between criminal behavior and mental insanity over the
years even the common man have grown to understood that the both are
distinct possibilities but what is happening in our court rooms.
The concept of insanity as a defense was established in arnold's case
was further developed in Hadfield, then came the famous Mc Naghten case
with it the most famous legal insanity test the Mc Naghten rules. After that
many tests came some was created to cover the loopholes left behind by the
Mc Naghten rules the most famous among them are the Durham test, the product
test and the ALI test.
But still the Mc Naghten rules have out lived its
successors and still proves to be the most commonly used in almost all
commonwealth and non-commonwealth countries. But where does the Mc Naghten
rules fall short, where does it fail to deliver justice.
The most common criticism levelled towards the test is that the word
disease of mind in a medical and legal sense includes non – mental
ailments also. The rules cover many common ailments such as epilepsy,
diabetes and sleepwalking and the rules do not cover a wide range of mental
ailments such as psychopathy and sociopathy. But we will get to that matter
later in this article. There is also another prominent argument raised by
decorated jurists and legal personalities and that is the question of moral
As cited in the Mc Naghten rules as defendant should not know that what he
was doing was 'wrong'. This 'wrong' only seems to be taken in the legal
sense not in the moral sense. This aspect as gave birth to the debate of
moral and legal responsibility. A person of mental illness may well know
that the act he is doing very well be contrary to law but he still takes
part in the said act because the act itself is not contrary to his morality.
Therefore a person who has gained a twisted sense of morality can very well
take part in a act knowing it is contrary to the law of the land. Therefore
the defendant can lack the sufficient mens rea to hold him culpable. This
problem was exposed in R v. Windle
where the defendant killed his
suicidal wife by giving her a 100 aspirin tablets and when the police
arrested him he told them he supposed he would be hanged for it
The defendant was
diagnosed with a form of communicated insanity known as folie a` deux
since the defendant knew that he was doing was contrary to law the court
took on a strict approach. For the defendant even though he found the act he
had done was illegal he never found it immoral. This factor was disregarded
by the court.
This judgement was found flawed in a number of occasions as in stapleton the
high court of australia found the judgement of windle wrongly decided as the
question was whether the defendant knew what he was done as wrong as in
rational sense of a ordinary man. In chaulk the supreme court of canada
observed wrong must mean more than legally wrong. As Moore observes only
individuals who can appreciate moral principles can be seen as rational and
only rational moral agents can be responsible in law.
The both wide and narrow scope of diseases
As we seen earlier the tests employed by the courts not only the Mc Naghten
tests but also the Durham and AlI test include a wide range of physical
anomalies as disease of mind at the same time not including 'real' disease
Following the Mc Naghten rules in R v. Kemp
the court ruled that
arteriosclerosis was a disease of mind for case where a man killed his wife
with a hammer. It is clear that disease of mind does not distinguish between
body and mind, in a sense stupidity can even be raised in defense.
In Bratty psychomotor epilepsy was qualified as a disease of mind in the
case a man strangled to death a 18 year old girl. The basis of such
observation was that this condition can cause problems in rational decision
making. Psychomotor epilepsy was also observed as a mental disease in sullivan.
In Hennessy, the defendant robbed a motorcycle. The defendant was a diabetic
patient who had failed to take his insulin injection for two or three days.
Hyper blood sugar was found an internal factor so therefore a mental
disease. The law has a fair share of judgements regarding diabetic
conditions. In quick, the defendant was nurse who assaulted his patient he
was diabetic who had taken insulin but did not consume any food to
neutralize it, he instead drank alcohol to do so.
This lead him to a state
of hypoglycemia. The court observed this was an external factor and directed
the defendant he cannot claim mental illness. This may seem bizarre While a
defendant who completed neglected his condition by not taking his vital
medication for three days as eligible to claim mental illness while the
person who didn't eat properly cannot. It is clear that the law has no clear
cut answers for these kind of situations.
Even while including these ailments in the spectrum of disease of mind the
real problem lies within the exclusion of certain other ailments. A most
prominent mental abnormality of our time is delusions and hallucinations.
These conditions arrive as a symptom of schizophrenia, which is the most
common spectrum of mental diseases. According to the traditional approach of
our courts, in case of hallucinations and delusions.
It is hard to analyze
the various mental progressions through a convict comes. So a very extensive
test is needed to conclude whether the hallucinations pushed the individual
to commit a act he otherwise wouldn't have. In Gopalan nair v. State of
the court didn't allow the insanity even when there was valid
medical proof of delusions (proof as much our Indian courts allow). This is
testament on the part of the court not considering delusions or
hallucinations a valid mental impairment.
The Mc Naghten rules only takes into account a type of psychology known as faculty
. This mode only takes into account:
But as it is observed medically there may be no connection between delusion
and conduct. The windle case was an example. He acted rationally in a sense
he knew it was contrary to law, it was his objective to do something
contrary to law so that he could be hanged. This was due to his delusions.
In the while in contrary the court in phulabai v. State of Maharashtra,
there was no medical evidence to corroborate the claim of insanity. But
the court granted it on the ground of common sense
. Even Somnambulism is also
a valid disease of mind as observed in pappathi ammal case.
The question of psychopathy:
The issue of psychopathy, sociopathy and other
conditions falling under the anti-social spectrum and their legal relevance
deserves a whole new article of it's own. The conditions falling inside the
anti-social spectrum are complex medical and legal problems. Psychopaths
have no human instincts which makes them handicapped in reasoning so,
therefore mentally ill.
Psychopaths very well know the illegality of their
act, but their condition impair them of their cognitive abilities leading to
state where they cannot distinguish the wrongfulness of the act. In a
medical sense psychopaths suffer from brain region working abnormality but
these internal factor is not considered to fall under the purview of legal
insanity. The main argument raised by those who oppose psychopathy from
being included in the insanity plea is that it can put the society in
danger. Law has yet to find a solution around this problem.
The result of this problems is seen in statistics. The insanity plea is the
most less used defense with the most low success rate. This seen especially
in countries where the death penalty is abolished. Serving a finite sentence
is more desirable than an indefinite time in psychiatric care. But the
insanity plea is not fully out of hope as some elements of the plea is still
utilized very commonly which will get to below:
Diminished responsibility, Automatism and Irresistible impulse
These are the most common modern day applications of the plea, even though
they do not grant full pledged immunity like the insanity plea. They can
serve as a sufficient deterrent to long jail sentences.
Diminished responsibility is a fully recognized defense in a sense since it
has no particular legislative support in the majority of places it is
applied. Diminished responsibility has been given shape and structure by
judgements. It encompasses even a wider scope of then insanity plea itself
so it is favored by people more than insanity defense.
responsibility principle will only fall in theory if it is proven that the
mental state has no impact in the crime committed. The problem faced in this
aspect is the fluidity of the principle, the need for law making is urgent
in order to avail this principles to those who deserve it and to take ti
away from those who don't. I will give a example to the matter.
The 2000 dharmapuri bus burning case
, the facts of the case is such that
during a protest staged by AIDMK members after the conviction of their
leader jayalalitha. The party members sprinkled petro inside and outside a
bus carrying female students of TNAU and set it on fire. After a long line
of trials confirming death sentence for the prime convicts. The supreme
court of India which initially upheld the death sentence on a review
petition commuted it to life sentences.
The commutation was based on the argument put forward by the defense
counsel that the act was done in a state of mob frenzy
. The apex court applied the principle of diminished
responsibility. This commutation and the application of diminished
responsibility was criticized by many on the point that in order to apply
diminished responsibility the conduct of the accused before and after the
act must not contain an element of planning. The other aspect was is the
accused should have a history of mental illness.
These conditions where
observed to be necessary in walton v. queen
. The supreme court itself said
that the crime was planned, barbaric and abused the right of peaceful
assembly. The accused had bought petrol on seeing the parked bus and after
setting it on fire left the scene in motorcycles. The case was shrouded in
controversies due the missing of important files, the sudden change of venue
and matter of 20 witnesses becoming hostile. The case had high impact in the
social and political sphere especially due to the early release of the
convicts by the AIDMK government before serving full jail time.
The another popular defense is of automatism which is of two types insane
automatism and sane automatism. The condition refers to a state when
rational functioning of the mind ceases and the body ceases to obey the
mind. In charlson the jury reached the verdict of non-guilty for the accused
after he beaten to death his 10 year old son and threw him in the river.
This is due the fact that the accused was suffering from a cerebral tumor
which can cause a sudden outburst of anger, thus the defense of non-insane
automatism was taken up. It was observed in hill v. baxter
, that if there is
a sudden loss of consciousness the accused is safe to acquitted. The defense
of automatism is now appearing to be a attractive defense doesn't it, the
line between sane and insane automatism is blurred and I mean very blurred.
It is hard to determine whether the factors causing the criminal act is
internal or external and thereby sane or insane automatism.
The last and certainly not the least is the defense of irresistible impulse.
The sudden flow of violent impulses can rob the body and mind of its
rationality this the base of this defense in simple words. the most famous
use of the defense is in the infamous lorena bobbit case
. Like diminished
responsibility the defense of irresistible impulse is not recognized in a
legislative sense. This is due to the notion that it is impossible to draw
to conclusion on how irresistible the impulse is.
ahmedkoya v. State of Kerala
, the court observed that lose of self control
due to a irresistible impulse is no defense. The court cannot reach another
conclusion from standing on the grounds of our conventional insanity tests
especially the Mc Naghten rules
because they ignore key psychiatric concepts.
As in ganesh shrawan case, it was observed even if the act was committed out
of irresistible impulse and there is no identifiable motive. It is still not
form grounds of a valid defense.
The 42nd report of the law commission recommended to provide when the
impulse is to strong to resist by the individual will and even when he know
the act is contrary to law. This recommendation was rejected on the notion
that if accepted it will place heavy reliance on medical reports and the
availability of medical experts on at the district level may create
problems. This lack of medical experts and expertise in the field of
psychiatry in India is problem which received very less attention which we
will go through soon.
The need of legislative backup of to these above stated principles is
necessary to once again bring back the oldest criminal defense in the world
back to its glory, In order to meet the ends of justice.
The Indian scene: Forensic psychiatry
We can go through problems which need urgent attention but on contrary have
received very few attention from the legal community. Lets look into some
figures and statistics which show how India decides its insanity pleas.
It shown from the data that verdicts of lower courts depended upon
documentary evidence of mental illness prior to the crime and psychiatrist
opinion. The most common crime was murder as (as murder carries a death
penalty). The most common relation with the victim was wife and the second
common one is first degree relative. The most diagnosed mental disease was
schizophrenia. Women were only 3% of the total number who pleaded insanity,
other interesting fact is that women enjoy more success in insanity pleas.
These factor has sparked a opinion that the law plays a role in enforcing
The study highlighted some core issues they stumbled upon some core issues.
It was evident the importance of documenting the various processes of
treatment by doctors. But in a poor country like India where a strong social
stigma exists against mental health issues. There is a lack of access of
psychiatric facilities and unscientific religious practices are used, also
the use of Ayurveda to treat mental disorders gives a result that documental
evidence is only available to elite.
There is reliance of psychiatric opinion but there is still no rigid
framework for gathering and evaluating psychiatric evidence and
opportunity for psychiatric evaluation. The study also pointed that for
those who had psychiatric help before crime, there was a duration of
spanning from one day to 6 months (mean duration being 275.2 days) the time
of commission of the act and the last psychiatric visit. In most cases the
psychiatrist was new to the accused(41 of 67 cases) that states that most
accused had no prior access to a doctor. One interesting statistic in the
study is that in case of insanity pleas in India the higher court was very
less inclined to alter the verdict reached by lower court in the instance of
It is not only the Indian psychiatrics that see there is urgent need for
reformation in the field of forensic psychiatry. The Gujarat high court in
the Bolabhai hirabhai case acknowledged the power of forensic psychiatry in
the administration of justice. It also acknowledged that forensic psychiatry
is not yet gainfully employed in the administration of justice. The court
stated that in court of law the only aspect that has drawn interest is the
criminal responsibility that arises from the unsoundness of mind.
learned opinioned that court should ask whether the person in this same
condition might have committed the same act if he had emotional balance,
average intelligence and appropriate perception. It should also examine
whether the state of his mind was powerful to negate the above factors. The
high court also gave great value to dr. Agarwal who had given his expert
opinion as a defense witness. The doctor had 18 years experience in the
field of psychiatry along with clinical experience. It also criticized the
trail court for not giving the doctor's opinion its deserved value. The
court also criticized the insuffiences of the mental health act, 1987.
Citing a another study which travelled more deeply into the matter how
psychiatry should be applied in courts along with providing guidelines to
psychiatrists and the legal community. The study put forward the urgent need
of establishing of centers to provide forensic psychiatric training and
clinical services. The study draws justification for this need by citing
that 79.6% of prisoners (from a total number of 5024) had mental illnesses
or substance abuse. Excluding substance abuse 27.6% suffered from
diagnosable mental disorder.
The study also provides guidelines to abide for ordinary psychiatrists who
were called forth to act forensic psychiatrists. It observed that it was the
duty of the psychiatrist to educate the court in psychiatric issues, provide
honest and objective opinions based on factual data and sound reasoning. The
psychiatrist should check into history of presenting illness, past medical
history, family and personal history, premorbid personality and substance
The psychiatrist should try to get detailed account of the crime
through open ended questions to draw a clear picture of the mental status of
the defendant at the time of offense. A detailed inquiry should be conducted
into his cognition, behavior, emotions and perception before, during and
after the incident. The degree of knowledge of the accused about law and the
nature of act committed should be ascertained. If required cognitive
functioning assessment should be done with open questions without employing
The suggestions put forward by the study are:
- As of the current scenario there is no formal graduation courses or
institutes in forensic psychiatry in India.
- There is a urgent need to
establish educational institutions of such nature to meet the need of the
times we are living in
Judicial officers, police officers, correctional officers and human rights
workers should be given training or basic education in the relevant concepts
of forensic psychiatry.
- Prison mental health centers should be started.
- The service of a forensic psychiatrist should be secured in district level
hospitals. This arrangement can ensure access to the services that are
already ensured by the CRPC
- To revisit and do systematic research into the principals of diminished
responsibility and irresistible impulse.
To conclude and to sum up in simple words, standardized procedure for
evaluation of those who plead insanity does not exist. But is there no
bright side in our system, yes there is. India aimed at major reformation in
the area of rehabilitation of the criminally insane through the new mental
healthcare act 2017 (which had decriminalized suicide). This new act which
came into force in 2018 replaces the mental health care act 1987.
houses major changes such as prescribing guidelines and controlling the use
of electroconvulsive therapy. It also guarantees that mental illness will be
determined according to international accepted standards. The act also
vouches to tackle the stigma existing around mental health in India.
This act offers a good start towards a even better change. But the issues
which exist around the insanity plea still continue to exist in both
national and international levels. It is widely observed that the insanity
plea is better functioning in countries which have inquisitorial criminal
justice system then the countries having adversarial criminal justice
Still in Scandinavian countries the plea is handled more effectively
by passing it through a board consisting of persons from judicial,
psychiatric and human rights background. The problem of the human is no way
simple especially when it is applied to law, the human race is still
clueless about its own mind. The only possible solution to see a better
future for mankind's oldest defense plea is to integrate the advances in
both science and law.
Written By: Jithendran. S