INSANITY a person is impaired and he commits an

  INSANITY AS A DEFENCE IN INDIA AND AROUND THE WORLDBySHIVEN KHURANA4TH Year
StudentAmity Law School,
DelhiGGSIP University            ABSTRACTInsanity is the state of mind where the
person is not in control of his actions which in the ordinary condition of mind,
a prudent person would not indulge in such a discourse. There may arise
circumstances where due to such a condition, the thinking ability of such a
person is impaired and he commits an unlawful act or a lawful act by unlawful
means. However, the Criminal Jurisprudence has held that despite of an unlawful
act committed by an insane person, he shall not be held liable for the same. Insanity in the general sense is
different from insanity in the legal context. It is further classified into
legal and medical insanity. The former is the condition when the person
committing the offence must not be able to understand the nature of the offence
the person is committing and the fact that it is an act which is contrary to
the provision of law whereas the latter deals with the medical condition of the
person who has been charged with the commission of the offence.This Research paper shall expound the
origins of insanity as a defence and shall work towards analysing the stand of
various international criminal systems in general and India in particular. The
criminal courts and legislatures all over the world have laid down various
tests which are used to establish insanity as a defence and the paper shall
further analyse these tests. The Paper also deals with the competency
of the accused to stand trial or the fitness to plead of the accused which is
necessary for a fair trial for the person who is accused for the offence.
Keeping in mind all these factors, we need to examine the inception, evolution,
implementation and interpretation of the insanity as a defence      Introduction:
Origin and Progression of the Defence of InsanityInsanity is a factor which can drive a
person out of his sense and impair the ability of person to think as a prudent
man thus leading a person to act in a wrongful manner which can lead to the
person committing a criminal offence. The defence of insanity is part of the
criminal in our country and abroad where the accused can prove that he was not
in the right state of mind when the offence was committed. Insanity defence is probably one
of the most controversial of all criminal defence strategies, and at the same
time is one of the least used. Merriam Webster defines insanity as a severely disordered state of the mind usually
occurring as a specific disorder. The plea of Insanity has over the years in
different cases of different countries around the wold formed the basis of
acquittal for many accused who have been able to prove that their capacity to
think as a prudent man was paralysed by unsoundness or any other mental
disorder suffered by them . The defendant has burden on him to prove that he
was suffering from a disorder at the time of him committing the offence.Over the years a few
tests have been laid down to determine whether a person falls under the
category of an insane person who would be entitled to the defence of insanity. The first acquittal came in the case of
James Hadfield1 case
when he was being charged with attempted murder of King George III. He was
acquitted of the charge. TESTS LAID DOWN OVER THE YEARSThe first test to
determine the plea of insanity was propounded by British courts which was known
as the “Wild Beast test” whereby a
person who does not have a mental no more than in an infant, a brute, or a wild
beast, he would not be held responsible for his crimes.2
He was found guilty of the crime and was convicted for a sentence of
imprisonment for life.A test to determine insanity was
propounded in the United States in the case of Durham v. United States3 in 1954 wherein the court held
that “the defendant will not be held guilty if the unlawful act was a result of
mental disease or mental defect”. The court further rejected the idea of the
inability to know right from wrong or the inability to control impulses. The
court promoted the Durham rule which promotes the consideration of the mental
state of the accused. In the case of US vs Brawner4
the Brawner Rule by
the District of Columbia Appeals set aside the Durham ruling arguing the
ruling’s requirement that a crime must be a “product of mental disease or
defect” placed the question guilt on expert witnesses and diminished the jury’s
role in determining guilt. Under this proposal, juries are allowed to decide
the “insanity question” as they see fit. Basing its ruling on the
American Law Institute’s (ALI) Model Penal code, the court ruled that for a
defendant to not be criminally guilty for a crime the defendant, “(i) lacks
substantial capacity to appreciate that his conduct is wrongful, or (ii) lacks
substantial capacity to conform his conduct to the law.”The case of R v. Mc’Naghten case5 which has led to formation
of the Mc’Naughten rules is one of the most important guiding principle for
Indian criminal law while dealing with the issue of insanity1. that
is every person is presumed
to be sane, until the contrary is established.2. To establish the
defence 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 know it, he did not know that what he was
doing was wrong.3. The test of
wrongfulness of the act is in the power to distinguish between right and wrong,
not in the abstract or in general, but in regard to the particular act
committed.Indian Perspective – How it deals with Plea of Insanity as a Defence?
Difference between legal and Medical insanity?Section 84 of the Indian penal Code,
1860 states that Act of a person of
unsound mind. – “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”.Section 84
provides the benefit of doubt if it is proved that the accused at the time of
commission of offense was labouring under such a defect of reason, from disease
of the mind, as not to know the nature and quality of the act he was doing, or
that even if he did not know it, it was either wrong or contrary to law then
this section must be applied. The crucial point of time for deciding whether
the benefit of this section should be given or not, is the material time when
the offence takes place. In coming to that conclusion, the relevant
circumstances are to be taken into consideration. The above principle was highlighted
in Bapu @ Gajraj Singh vs State Of
Rajasthan6The Hon’ble Supreme Court in case of S. Sunil Sandeep v. State of Karnataka7 gave the following principles to
be borne in mind in applying this Section:-“(a) every type of insanity is
not legal insanity; the cognitive faculty must be so destroyed as to render one
incapable of knowing the nature of his act or that what he is doing is wrong or
contrary to law;(c) the burden of proof of legal insanity is on the accused,
though it is not as heavy as on the prosecution;(d) the Court must
consider whether the accused suffered from legal insanity at the time when the
offence was committed;(e) in reaching such a conclusion, the circumstances
which preceded, attended or followed the crime are relevant considerations; and
(f) the prosecution in discharging its burden in the face of the plea of legal
insanity has merely to prove the basic fact and rely
upon the normal presumption of law that everyone knows the law
and the natural consequences of his act. The court also held that “Medical
insanity should be distinguished from legal insanity. Legal insanity would
always be different from eccentricity or changed behaviour”.The apex court in Hari Singh Gond vs
State of Madhya Pradesh8
differentiated between legal insanity and medical insanity and explained that the
standard to be applied is whether according to the ordinary standard, adopted
by reasonable men, the act was right or wrong. The mere fact that an accused is
conceited, odd irascible and his brain is not quite all right, or that the
physical and mental ailments from which he suffered had rendered his intellect
weak and had affected his emotions and will, or that he had committed certain
unusual acts, in the past or that he was liable to recurring fits of insanity
at short intervals, or that he was subject to getting epileptic fits but there
was nothing abnormal in his behaviour, or that his behaviour was queer, cannot
be sufficient to attract the application of this section.The same
principles have also been reiterated in various landmark judgements by the apex
court as well as high courts of country in matters such as Surendra Mishra vs
State of Jharkhand9The Supreme
court in the case of State of Maharashtra v. Umesh Krishna Pawar10 held
that the onus to prove that the accused was so insane as not to be able to
distinguish between right and wrong. Whether accused on the day of the incident
knew everything he was doing, he would not fall in this exception. The Apex court held
in Ratan Lal vs State of Madhya Pradesh11
and Sudhakaran vs State of Kerala12
 that It is now well-settled that the crucial point of
time at which unsoundness of mind should be established is the time when the
crime is actually committed and the burden of proving this lies on the accused.International perspective on Insanity as a DefenceIn South Australia the Criminal
Law Consolidation Act 1935 (SA)
Australia in section 269C deals with mental competence of the person at the time of
the commission of the crime. According to the section a person is mentally
incompetent to commit an offence if, at the time of the conduct alleged to give
rise to the offence, the person is suffering from a mental impairment and, in
consequence of the mental impairment if the person does not know the nature and
quality of the conduct; or does not know that the conduct is wrong; or is
unable to control the conduct. The Swiss Penal Code13
provides that ‘any person suffering from a mental disease, idiocy or serious
impairment of his mental faculties, who at the time of committing the act is
incapable of appreciating the unlawful nature of his act or acting in
accordance with the appreciation may not be punished’.Penal Code of France14
provides that ‘there is no crime or offence when the accused was in state of
madness at the time of the act or in the event of his having been compelled by
a force which he was not able to resist’.In Canada, The defence of mental disorder is codified in section
16 of the Criminal Code. In order to establish a
claim of mental disorder the party raising the issue must show on
a balance of probabilities first that the person who committed the
act was suffering from a “disease of the mind”, and second, that at
the time of the offence they were either 1) unable to appreciate the “nature
and quality” of the act, or 2) did not know it was “wrong”. The
meaning of the word “wrong” was determined in the Supreme Court case
of R. v. Chaulk15 which held
that “wrong” was NOT restricted to “legally wrong” but to
“morally wrong” as well.Competency to
stand trial Another kind of
insanity which needs to be considered is the competency to stand trial. Competency does
not address the guilt or innocence of a party. Such type of insanity deals with
the ability of the individual to understand the charges and penalties that have
initiated against him and would not be able to assist the defence in the manner
a sane and prudent man would be able to do in his defence. When a person who is
found to be mentally incompetent to stand trial is usually hospitalized
for treatment until such time that the person is competent to stand trialA thorough
competency assessment must focus first on gathering history specific to the
particular case. Standardized testing is useful, but not to the exclusion of
first tailoring an expert assessment to the relevant issues of a given case. A
precise and conscientious report also will include soliciting information from
collateral historians whenever possible. Review of hospital and corrections
records, including private communications, yields considerable information
about competency to stand trial, especially when staff may be consulted
directly. Input about motivation, mental health, and ability to understand
material relevant to his proceeding may successfully be gathered from
confidantes and family. In some instances, particularly when the court raises a
competency concern because of a defendant’s behaviour, impartial officers of
the court should be engaged. The competency assessment may warrant the forensic
expert actually observing him in court16.The U.S. Supreme Court ruled in Dusky
v. United States17 that a
defendant must have adequate ability to lucidly consult with his attorney and
to have rational and factual comprehension of the charges against him in order
to be found competent to stand trial.In the case of
Medina vs California18
the Court concluded that due process only
requires “the most basic procedural safeguards” and once the
defendant is provided “access to procedures for making a competency
evaluation,” due process does not further require “the state to
assume the burden” of proving competency. A person with a
mental disorder should be assumed to have mental capacity to decide on various
matters unless the contrary can be shown. A common principle
as the United States is followed in countries like Australia where the same grounds
have been provided under section 269H of the Criminal Law Consolidation Act 1935 (SA)In England the principle of fitness to plead
is followed which also deals with the ability of the defendant to understand
the proceedings against him. In England and wales after a plea is raised the decision
is mostly based on psychiatric evaluation. The test of fitness to plead is based on the ruling
of Alderson B.  In the landmark case of R v Pritchard19.
The court held that the accused will be unfit to plead if he is unable either:
1) to comprehend the course of proceedings on the trial, so as to make a proper
defence; 2) to know that he might challenge any jurors to whom he may object;
3) to comprehend the evidence; or 4) to give proper instructions to his legal
representatives. In Scotland a simpler test
is followed as laid down in HMA v Wilson20,
the test has two elements that is if the accused is able to be able to instruct
counsel and that if he is able to understand and follow proceedingsIn Canada, in R. v. Demers21,
the Supreme Court of Canada struck down the
provision restricting the availability of an absolute discharge to an accused
person who is deemed both “permanently unfit” and not a significant
threat to the safety of the public. Presently a Review Board may recommend a
judicial stay of proceedings in the event that it finds the accused both
“permanently unfit” and non-dangerous. The decision is left to the
court having jurisdiction over the accused.In India persons
with mental illness need to undergo a medical examination called fitness to
stand trial ‘as per the Code of Criminal Procedure, 1973 Sec 328, and Sec
329. Section 328 of CrPC (Procedure in case of the accused being lunatic)
states that when a Magistrate holding an inquiry has
reason to believe that the person against whom the inquiry is being held is
of unsound mind and consequently incapable of making his/her defence, the
Magistrate shall inquire into the fact of such unsoundness of mind, and shall
cause such person to be examined by the civil surgeon of the district or such
other medical officer as the State Government may direct, and thereupon shall
examine such surgeon or other officer as a Witness and shall reduce the
examination to writing’. If a person is found
incompetent to stand trial, the trail is usually postponed until such time as
the person is judged competent. A person found psychiatrically incompetent for
trial is usually sent for treatment to regain competence (even against his/her
will). Section 329 of the code of criminal procedure deals
with the trial of a person with an unsound mind and provides that  (1) If at the trial of any person before a
Magistrate or Court of Session, it appears to the Magistrate or Court that such
person is of unsound mind and consequently incapable of making his defence, the
Magistrate or Court shall, in the first instance, try the fact of such
unsoundness and incapacity, and if the Magistrate or Court, after considering
such medical and other evidence as may be produced before him or it, is
satisfied of the fact, he or it shall record a finding to that effect and shall
postpone further proceedings in the case.
(2) The trial of the fact of the
unsoundness of mind and incapacity of the accused shall be deemed to be part of
his trial before the Magistrate or Court.The Calcutta high
court in the case of Bibhuti Mahato vs State of West Bengal22
held that it is the duty of the court to satisfy itself under section 328 and
section 329 of the code of criminal procedure that a person is a lunatic or
unsound mind and cannot stand trial.Conclusion                                                    Insanity
has over the years developed as a defence for those who were not in a prudent
thinking capacity at the time of the commission of the offence. Insanity
disturbs one state of mind and the person is not able to understand the
consequences of the act he is committing and the fact that the act is contrary
to law. The person who has committed the offense was suffering from a defect of
reason or was suffering from mental disease which impaired his ability to
think. Countries all over the world have similar grounds to determine whether the
person can be classified as insane at the time of the commission of the
offence. Insanity can be explained
that the
standard to be applied is whether according to the ordinary standard, adopted
by reasonable men, the act was right or wrong. That it needs to be proved by the defence that at the
crucial point of time at which unsoundness of mind took place is the time when
the crime is actually committed and the burden of proving this lies on the
accused. It has been observed by courts and legislations all over the world
that legal insanity at the time of the commission of the offence is necessary
to be proven while medical insanity cannot form grounds for acquittal of the
accused.  It has been held that there is no crime or
offence when the accused was in state of madness at the time of the act or in
the event of his having been compelled by a force which he was not able to
resist’. The paper
also focuses on the competency to stand trial or fitness to plead of the
accused. The principle of competency to stand trial applies when the person is
so insane that he would not be able to instruct his counsel properly which hamper
the right to a fair trial for the person against whom the charges have been
raised. Such type of
insanity deals with the ability of the individual to understand the charges and
penalties that have initiated against him and would not be able to assist the
defence in the manner a sane and prudent man would be able to do in his defence

1
 1800, 27 St.Tr.128.

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2R v Arnold (1724)
16 How St. Tr. 765

3
214 F.2d 862 (D.C. Cir. 1954)

4
471 F.2d 969, 1005 n.79 (D.C. Cir. 1972).

5
8 ER 718, Volume 8

6
2007(3)ACR3308(SC)  2007(8) SCC 66

7
1993 Cri LJ 2554

8 (2008) 16 SCC 109

9 2011 (11) SCC 495 , AIR 2011 SC 627

10
(1994) 1 Bom. Cr. 575

11 AIR 1971 SC 778,  (1970) 3 SCC 533, 1971 3 SCR 251

12 (2010) 10 SCC 582

13 Section 10

14 Article 64

15
1990 3 S.C.R. 1990 3 S.C.R. 

16
https://www.forensicpanel.com/expert_services/psychiatry/criminal_law/competency_to_stand_trial.html

17
 362 U.S. 402(1960)

18
505 U.S. 437 (1992)

 

19
(1836) 7 C. & P. 303

20
1942 JC 75 

21
2004 2 S.C.R. 489, 2004 SCC 46

22
(2000) 3
Cal LT 115 : (2000) 2 Cal LJ 125