INSANITY insanity in the legal context. It is

  INSANITY AS A DEFENCE IN INDIA AND AROUND THE WORLDBySHIVEN KHURANA4TH YearStudentAmity Law School,DelhiGGSIP University            ABSTRACTInsanity is the state of mind where theperson 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 arisecircumstances where due to such a condition, the thinking ability of such aperson is impaired and he commits an unlawful act or a lawful act by unlawfulmeans. However, the Criminal Jurisprudence has held that despite of an unlawfulact committed by an insane person, he shall not be held liable for the same. Insanity in the general sense isdifferent from insanity in the legal context. It is further classified intolegal and medical insanity.

The former is the condition when the personcommitting the offence must not be able to understand the nature of the offencethe person is committing and the fact that it is an act which is contrary tothe provision of law whereas the latter deals with the medical condition of theperson who has been charged with the commission of the offence.This Research paper shall expound theorigins of insanity as a defence and shall work towards analysing the stand ofvarious international criminal systems in general and India in particular. Thecriminal courts and legislatures all over the world have laid down varioustests which are used to establish insanity as a defence and the paper shallfurther analyse these tests. The Paper also deals with the competencyof the accused to stand trial or the fitness to plead of the accused which isnecessary 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 aperson out of his sense and impair the ability of person to think as a prudentman thus leading a person to act in a wrongful manner which can lead to theperson committing a criminal offence. The defence of insanity is part of thecriminal in our country and abroad where the accused can prove that he was notin the right state of mind when the offence was committed.

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Insanity defence is probably oneof the most controversial of all criminal defence strategies, and at the sametime is one of the least used. Merriam Webster defines insanity as a severely disordered state of the mind usuallyoccurring as a specific disorder. The plea of Insanity has over the years indifferent cases of different countries around the wold formed the basis ofacquittal for many accused who have been able to prove that their capacity tothink as a prudent man was paralysed by unsoundness or any other mentaldisorder suffered by them . The defendant has burden on him to prove that hewas suffering from a disorder at the time of him committing the offence.Over the years a fewtests have been laid down to determine whether a person falls under thecategory of an insane person who would be entitled to the defence of insanity.

The first acquittal came in the case ofJames Hadfield1 casewhen he was being charged with attempted murder of King George III. He wasacquitted of the charge. TESTS LAID DOWN OVER THE YEARSThe first test todetermine the plea of insanity was propounded by British courts which was knownas the “Wild Beast test” whereby aperson who does not have a mental no more than in an infant, a brute, or a wildbeast, he would not be held responsible for his crimes.2He was found guilty of the crime and was convicted for a sentence ofimprisonment for life.A test to determine insanity waspropounded in the United States in the case of Durham v. United States3 in 1954 wherein the court heldthat “the defendant will not be held guilty if the unlawful act was a result ofmental disease or mental defect”. The court further rejected the idea of theinability to know right from wrong or the inability to control impulses.

Thecourt promoted the Durham rule which promotes the consideration of the mentalstate of the accused. In the case of US vs Brawner4the Brawner Rule bythe District of Columbia Appeals set aside the Durham ruling arguing theruling’s requirement that a crime must be a “product of mental disease ordefect” placed the question guilt on expert witnesses and diminished the jury’srole in determining guilt. Under this proposal, juries are allowed to decidethe “insanity question” as they see fit. Basing its ruling on theAmerican Law Institute’s (ALI) Model Penal code, the court ruled that for adefendant to not be criminally guilty for a crime the defendant, “(i) lackssubstantial capacity to appreciate that his conduct is wrongful, or (ii) lackssubstantial capacity to conform his conduct to the law.”The case of R v. Mc’Naghten case5 which has led to formationof the Mc’Naughten rules is one of the most important guiding principle forIndian criminal law while dealing with the issue of insanity1. thatis every person is presumedto be sane, until the contrary is established.

2. To establish thedefence of insanity, it must be clearly proved that at the time of committingthe crime, the person was so insane as not to know the nature and quality ofthe act he was doing or if he did know it, he did not know that what he wasdoing was wrong.3.

The test ofwrongfulness 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 actcommitted.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 ofunsound mind. – “Nothing is an offence which is done by a person who, at thetime of doing it, by reason of unsoundness of mind, is incapable of knowing thenature of the act, or that he is doing what is either wrong or contrary to law”.Section 84provides the benefit of doubt if it is proved that the accused at the time ofcommission of offense was labouring under such a defect of reason, from diseaseof the mind, as not to know the nature and quality of the act he was doing, orthat even if he did not know it, it was either wrong or contrary to law thenthis section must be applied.

The crucial point of time for deciding whetherthe benefit of this section should be given or not, is the material time whenthe offence takes place. In coming to that conclusion, the relevantcircumstances are to be taken into consideration. The above principle was highlightedin Bapu @ Gajraj Singh vs State OfRajasthan6The Hon’ble Supreme Court in case of S.

Sunil Sandeep v. State of Karnataka7 gave the following principles tobe borne in mind in applying this Section:-“(a) every type of insanity isnot legal insanity; the cognitive faculty must be so destroyed as to render oneincapable of knowing the nature of his act or that what he is doing is wrong orcontrary 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 mustconsider whether the accused suffered from legal insanity at the time when theoffence was committed;(e) in reaching such a conclusion, the circumstanceswhich preceded, attended or followed the crime are relevant considerations; and(f) the prosecution in discharging its burden in the face of the plea of legalinsanity has merely to prove the basic fact and relyupon the normal presumption of law that everyone knows the lawand the natural consequences of his act. The court also held that “Medicalinsanity should be distinguished from legal insanity. Legal insanity wouldalways be different from eccentricity or changed behaviour”.The apex court in Hari Singh Gond vsState of Madhya Pradesh8differentiated between legal insanity and medical insanity and explained that thestandard to be applied is whether according to the ordinary standard, adoptedby reasonable men, the act was right or wrong.

The mere fact that an accused isconceited, odd irascible and his brain is not quite all right, or that thephysical and mental ailments from which he suffered had rendered his intellectweak and had affected his emotions and will, or that he had committed certainunusual acts, in the past or that he was liable to recurring fits of insanityat short intervals, or that he was subject to getting epileptic fits but therewas nothing abnormal in his behaviour, or that his behaviour was queer, cannotbe sufficient to attract the application of this section.The sameprinciples have also been reiterated in various landmark judgements by the apexcourt as well as high courts of country in matters such as Surendra Mishra vsState of Jharkhand9The Supremecourt in the case of State of Maharashtra v. Umesh Krishna Pawar10 heldthat the onus to prove that the accused was so insane as not to be able todistinguish between right and wrong. Whether accused on the day of the incidentknew everything he was doing, he would not fall in this exception. The Apex court heldin Ratan Lal vs State of Madhya Pradesh11and Sudhakaran vs State of Kerala12 that It is now well-settled that the crucial point oftime at which unsoundness of mind should be established is the time when thecrime is actually committed and the burden of proving this lies on the accused.

International perspective on Insanity as a DefenceIn South Australia the CriminalLaw Consolidation Act 1935 (SA)Australia in section 269C deals with mental competence of the person at the time ofthe commission of the crime. According to the section a person is mentallyincompetent to commit an offence if, at the time of the conduct alleged to giverise to the offence, the person is suffering from a mental impairment and, inconsequence of the mental impairment if the person does not know the nature andquality of the conduct; or does not know that the conduct is wrong; or isunable to control the conduct. The Swiss Penal Code13provides that ‘any person suffering from a mental disease, idiocy or seriousimpairment of his mental faculties, who at the time of committing the act isincapable of appreciating the unlawful nature of his act or acting inaccordance with the appreciation may not be punished’.Penal Code of France14provides that ‘there is no crime or offence when the accused was in state ofmadness at the time of the act or in the event of his having been compelled bya force which he was not able to resist’.

In Canada, The defence of mental disorder is codified in section16 of the Criminal Code. In order to establish aclaim of mental disorder the party raising the issue must show ona balance of probabilities first that the person who committed theact was suffering from a “disease of the mind”, and second, that atthe time of the offence they were either 1) unable to appreciate the “natureand quality” of the act, or 2) did not know it was “wrong”. Themeaning of the word “wrong” was determined in the Supreme Court caseof R. v.

Chaulk15 which heldthat “wrong” was NOT restricted to “legally wrong” but to”morally wrong” as well.Competency tostand trial Another kind ofinsanity which needs to be considered is the competency to stand trial. Competency doesnot address the guilt or innocence of a party. Such type of insanity deals withthe ability of the individual to understand the charges and penalties that haveinitiated against him and would not be able to assist the defence in the mannera sane and prudent man would be able to do in his defence. When a person who isfound to be mentally incompetent to stand trial is usually hospitalizedfor treatment until such time that the person is competent to stand trialA thoroughcompetency assessment must focus first on gathering history specific to theparticular case. Standardized testing is useful, but not to the exclusion offirst tailoring an expert assessment to the relevant issues of a given case. Aprecise and conscientious report also will include soliciting information fromcollateral historians whenever possible.

Review of hospital and correctionsrecords, including private communications, yields considerable informationabout competency to stand trial, especially when staff may be consulteddirectly. Input about motivation, mental health, and ability to understandmaterial relevant to his proceeding may successfully be gathered fromconfidantes and family. In some instances, particularly when the court raises acompetency concern because of a defendant’s behaviour, impartial officers ofthe court should be engaged. The competency assessment may warrant the forensicexpert actually observing him in court16.The U.S.

Supreme Court ruled in Duskyv. United States17 that adefendant must have adequate ability to lucidly consult with his attorney andto have rational and factual comprehension of the charges against him in orderto be found competent to stand trial.In the case ofMedina vs California18the Court concluded that due process onlyrequires “the most basic procedural safeguards” and once thedefendant is provided “access to procedures for making a competencyevaluation,” due process does not further require “the state toassume the burden” of proving competency. A person with amental disorder should be assumed to have mental capacity to decide on variousmatters unless the contrary can be shown. A common principleas the United States is followed in countries like Australia where the same groundshave been provided under section 269H of the Criminal Law Consolidation Act 1935 (SA)In England the principle of fitness to pleadis followed which also deals with the ability of the defendant to understandthe proceedings against him. In England and wales after a plea is raised the decisionis mostly based on psychiatric evaluation.

The test of fitness to plead is based on the rulingof 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 properdefence; 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 legalrepresentatives. In Scotland a simpler testis followed as laid down in HMA v Wilson20,the test has two elements that is if the accused is able to be able to instructcounsel and that if he is able to understand and follow proceedingsIn Canada, in R. v. Demers21,the Supreme Court of Canada struck down theprovision restricting the availability of an absolute discharge to an accusedperson who is deemed both “permanently unfit” and not a significantthreat to the safety of the public. Presently a Review Board may recommend ajudicial stay of proceedings in the event that it finds the accused both”permanently unfit” and non-dangerous. The decision is left to thecourt having jurisdiction over the accused.

In India personswith mental illness need to undergo a medical examination called fitness tostand trial ‘as per the Code of Criminal Procedure, 1973 Sec 328, and Sec329. Section 328 of CrPC (Procedure in case of the accused being lunatic)states that when a Magistrate holding an inquiry hasreason to believe that the person against whom the inquiry is being held isof unsound mind and consequently incapable of making his/her defence, theMagistrate shall inquire into the fact of such unsoundness of mind, and shallcause such person to be examined by the civil surgeon of the district or suchother medical officer as the State Government may direct, and thereupon shallexamine such surgeon or other officer as a Witness and shall reduce theexamination to writing’. If a person is foundincompetent to stand trial, the trail is usually postponed until such time asthe person is judged competent. A person found psychiatrically incompetent fortrial is usually sent for treatment to regain competence (even against his/herwill).

Section 329 of the code of criminal procedure dealswith the trial of a person with an unsound mind and provides that  (1) If at the trial of any person before aMagistrate or Court of Session, it appears to the Magistrate or Court that suchperson is of unsound mind and consequently incapable of making his defence, theMagistrate or Court shall, in the first instance, try the fact of suchunsoundness and incapacity, and if the Magistrate or Court, after consideringsuch medical and other evidence as may be produced before him or it, issatisfied of the fact, he or it shall record a finding to that effect and shallpostpone further proceedings in the case.(2) The trial of the fact of theunsoundness of mind and incapacity of the accused shall be deemed to be part ofhis trial before the Magistrate or Court.The Calcutta highcourt in the case of Bibhuti Mahato vs State of West Bengal22held that it is the duty of the court to satisfy itself under section 328 andsection 329 of the code of criminal procedure that a person is a lunatic orunsound mind and cannot stand trial.Conclusion                                                    Insanityhas over the years developed as a defence for those who were not in a prudentthinking capacity at the time of the commission of the offence. Insanitydisturbs one state of mind and the person is not able to understand theconsequences of the act he is committing and the fact that the act is contraryto law. The person who has committed the offense was suffering from a defect ofreason or was suffering from mental disease which impaired his ability tothink. Countries all over the world have similar grounds to determine whether theperson can be classified as insane at the time of the commission of theoffence. Insanity can be explainedthat thestandard to be applied is whether according to the ordinary standard, adoptedby reasonable men, the act was right or wrong.

That it needs to be proved by the defence that at thecrucial point of time at which unsoundness of mind took place is the time whenthe crime is actually committed and the burden of proving this lies on theaccused. It has been observed by courts and legislations all over the worldthat legal insanity at the time of the commission of the offence is necessaryto be proven while medical insanity cannot form grounds for acquittal of theaccused.  It has been held that there is no crime oroffence when the accused was in state of madness at the time of the act or inthe event of his having been compelled by a force which he was not able toresist’. The paperalso focuses on the competency to stand trial or fitness to plead of theaccused. The principle of competency to stand trial applies when the person isso insane that he would not be able to instruct his counsel properly which hamperthe right to a fair trial for the person against whom the charges have beenraised. Such type ofinsanity deals with the ability of the individual to understand the charges andpenalties that have initiated against him and would not be able to assist thedefence in the manner a sane and prudent man would be able to do in his defence1 1800, 27 St.

Tr.128.2R v Arnold (1724)16 How St. Tr.

7653214 F.2d 862 (D.C. Cir. 1954)4471 F.

2d 969, 1005 n.79 (D.C. Cir. 1972).58 ER 718, Volume 862007(3)ACR3308(SC)  2007(8) SCC 66 71993 Cri LJ 25548 (2008) 16 SCC 1099 2011 (11) SCC 495 , AIR 2011 SC 62710(1994) 1 Bom. Cr.

57511 AIR 1971 SC 778,  (1970) 3 SCC 533, 1971 3 SCR 25112 (2010) 10 SCC 58213 Section 1014 Article 64151990 3 S.C.R.

 1990 3 S.C.R. 16https://www.forensicpanel.

com/expert_services/psychiatry/criminal_law/competency_to_stand_trial.html17 362 U.S. 402(1960)18505 U.S. 437 (1992) 19(1836) 7 C.

& P. 303201942 JC 75 212004 2 S.C.R. 489, 2004 SCC 4622(2000) 3Cal LT 115 : (2000) 2 Cal LJ 125

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