Synopsis

TITLE: -

INSANITY ‘A DEFENSE UNDER CRIMINAL JUSTICE

ADMINISTRATION’: AN ANALYSIS

Submitted by;

Name: MD. ARIZ ANWAR

Roll No.

Course: LL.M.(Executive)(Self-Financed)

Semester: I

Under the Supervision Of

Dr. Mohd. Saleem

Asst. Professor

Faculty of Law

Jamia Millia Islamia, New Delhi-110025.

Session (2019-2020).

1
 CHAPTER 1

INTRODUCTION

The subject of the “Criminal Liability” and “Mental Illness” has hitherto been continuing as
controversial and endless debate under the Criminal Jurisprudence of common law countries.
The jurisprudence of the subject allegedly claims that the first such verdict on “Insanity” in
the history of Criminal Justice Administration was passed by the twelve judges (the jury of
that time) of the Queen’s Bench, in the case of R. v. Daniel Mc Naughton1 of the mid-19th
century (1843) in England. This case often has been referred, by the judges, prosecution and
the defense counsel, professionals and the academicians, as ‘thumbnail reference’ for case
study of the “Defense of Insanity” taken under Criminal Justice Administration of common
law countries.2 The author in his article commenting on this case (also known as Mc
Naughton’s Case3) in his words that “ this has been the most prominent and influential legal
case in the history of forensic psychology and psychiatrist for the Wilful Murder of ‘Mr.
Drummond’ which took place in 1843.”4

Nevertheless, in the judgement of the Mc Naughton’s case, the foreman of the jury
announced the verdict in favour of Daniel Mc Naughton by saying aloud that “we have found
the prisoner not guilty, on the ground of insanity”5. The verdict was made as a subject of
debate in the House of Lords and as a result of this debate a set of five questions were
formulated and put to the House of Lords for making the law on the topic in a clear and
legitimate manner. Answers to these questions are famously known as Mc Naughton “Rules.6
Moreover, the jurisprudence on the subject seems confusing with the advancement of modern
“Medico-Psychiatry” knowledge and uncertain with 176 years old Mc Naughton’s Rules.

CHAPTER 2

1
1843 RR 59: 8ER 718 (HL).
2
J. Thomas Dalby, “The case of Daniel Mc Naughton: Let’s get the story straight”, 27 American Journal of
Forensic Psychiatry 17 (2006).
3
Supra note 1
4
Supra note 2
5
Id. at 28.
6
K I Vibhute (ed.), PSA Pillai’s Criminal Law,102(Lexis Nexis, Gurgaon, 12th Edition, 2014).

2
STATEMENT OF PROBLEM

The researcher, therefore, has attempted to examine and analyse the following aspects of
defense of insanity taken under the Criminal Justice Administration of English, Indian and
the other common law countries are;

(a) A brief and critical review of the Mc Naughton “Rules” in retrospect to show the
extent and scope of applicability of these “rules” in the statutory provisions of
common law countries dealing with the defense of insanity.
(b) To, find out the scope and extent of defense of insanity under the Criminal Justice
Administration of common law countries, and the modern attempts at codification
culminating in section 84 of the Indian Penal Code.
(c) An examination of Judicial Interpretations of the expressions “unsoundness of mind”
and “Insanity” and the references of the selective case-laws of over a century,
relating to the jurisprudence of the subject under English and Indian legal system.
(d) To, discuss some allied problems—like the challenges of adaptation to reflect
modern advancement in “medico-psychiatric” knowledge.
(e) To, discuss the “burden of proof” and “burden of persuasion” and its “Quantum” – in
relation to the defense of insanity.
(f) To, find out the shortcomings, if any, of the existing laws of defense of insanity and
to suggest for its reformation.

METHODOLOGY

The methodology which the researcher has adopted is doctrinal. Doctrinal research helps
formulating the legal “doctrines” to which the process involves the analysis of legal and
statutory provisions. The analysis and interpretation of legal provisions with the particular
facts of the case study leads to new dimensions and this becomes the basis of the research
area. Doctrinal research, therefore, is concerned with the innovation and expansion of legal
doctrines with the help of textbooks, statutory provisions and the articles of journals of the
jurisprudence of the subject. The present research is purely doctrinal as this research has been
carried out on the existing legal provisions, rules, legal maxims and doctrines with the help of
case study and by way of analysing the principles laid by the legislative as well the judicial
authorities. Researcher has used the primary and secondary sources as well as the statutes on
the topic for

3
deeper analysis of the legal connotations. The research also involves brief review of
interpretation and understanding of the authoritative sources as well.

DEFINITION OF “DEFENSE OF INSANITY”

The “Defense of Insanity” is one of the ‘general exceptions’ to the Criminal Justice
Administration System in which the transgressor is exonerated from criminal liabilities, due
to “unsoundness of mind” at the time he was committing such act which has been charged as
an offence against him.

OBSERVATIONS

Amongst all the common law criminal jurisdictions, “Insanity” or “unsoundness of mind” is
one of the ‘general exceptions’ of criminal liability. 7 The law recognises legal insanity and
not medical or clinical insanity. This is because of the Mc Naughton rules which clearly
indicates that, every person in the eyes of law is presumed to be “sane” and to have some
sufficient degree of knowledge, until the contrary is proved, to held responsible for his
crimes.8

In other words, the person who at the time of commission of the criminal act is incapable of
forming criminal intent and his cognitive faculties were so impaired, as not to know the
nature and quality of the act he did or if he did know it , he did not know that what he was
doing was wrong or contrary to law is exonerated from criminal liability. 9 Although, there are
two types of insanity we will be discussing in the succeeding [chapter 3] are as followings:-

a) Legal Insanity and

b) Medical or Clinical Insanity;

But the law recognises only “legal insanity” as excusable and not medical or clinical insanity.
Though there are some medical insanity like Schizophrenia, Paranoia and Delusional disorder
of persecutory type which are exonerated from criminal liability. 10 Moreover, the defense of
insanity is a concept of Anglo-American jurisprudence that holds criminal behaviour to be
punishable only when it is blameworthy 11 and originally based on the Mc Naughton “Rules”.

7
Supra note 6 at 101.
8
Id. at 102.
9
Justice K T Thomas and M A Rashid (eds.), The Indian Penal Code 147 (Lexis Nexis, Gurgaon,35th edn/2017).
10
supra note 2 at 24.
11
NCJRS, “The Insanity Defense And Its Alternatives (A Guide for Policy makers)”, 1 (May, 1984).

4
The reason behind the admiration of “Insanity” or “unsoundness of mind” as defense under
Criminal Justice Administration, is that of the legal principle actus non facit reum nisi mens
sit rea—an act forbidden by penal law is not punishable if it is unaccompanied by a guilty
mind.12 This means to held a person liable for his act mens rea (forming criminal intent) is a
prerequisite component under Criminal Law.

Therefore, is to be noted that the justification for providing “Insanity” as a complete defense
under Criminal Justice Administration lies in the proposition that “an insane person is
incapable of forming criminal intent and that a mad man has no free will (furiosis nulla
voluntas est) and he is like one who is absent (furiosus absentis low est). In fact, a mad man
is punished by his own madness (furiosus furore sui puniter).” 13

Mc Naughton’s Rules

The followings are the main points of McNaughton's rules:14

1. Every man is to be presumed to be sane and to possess a sufficient degree of reason to

be responsible for his crimes, until the contrary be proved.

2. An insane person is punishable “if he knows” at the time of crime to establish a

defense of insanity, the accused, by defect of reason or disease;

3. of mind, is not in a position to know the nature and consequences. The insane person
must be considered in the same situation as to responsibility;

4. as if the facts with respect to which the delusion exists were real.

5. It was the jury's role to decide whether the defendant was insane.

Though, the essence of defence of insanity we can trace back has been in practice from the
ancient times but the law at present on the subject, under the common law counties is purely
based on these Mc Naughton “Rules”. It has, thus, served as the basis of the defense of
insanity under the English Criminal Justice Administration and subsequently the common
law countries and other jurisdictions adapted it in their statutory provisions.

English Law of insanity;

12
Supra note 8.
13
Sir William Blackstone, IV Commentaries on the Laws of England, 304 (17th Edition, 1830).
14
Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5282615/(last visited on 24th Nov 2019)

5
 1. Every person is presumed to be sane and to having sufficient degree of knowledge
and reasoning to be responsible for his crimes, until the contrary is proved.
2. To establish the defense of insanity, it must be clearly proved that at the time of the
commission of the crime, the accused was incapable to form criminal intent and was
unable 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 or contrary to law.
3. The test of ‘cognitive faculties’ of a person which distinguishes the right from wrong
is not in the abstract or in general, but in regard to the particular “act” he committed.

Moreover, the law relating to the defense of insanity in India has been codified under section
84 of the IPC15 which we will be discussing in next chapter.

15
The Indian Penal Code, 1860 (45 of 1860).

6
 

CHAPTER 3

DEFINITION OF “INSANITY” UNDER THE INDIAN PENAL CODE

(Section 84, Indian Penal Code 1860)

Section 84 of the IPC16 has been codified under Chapter IV which contains the ‘General
Exceptions’ reads thus;

Section 84. 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.”17

The code appears to have been carried within itself the essence of Mc Naughton “rules”
under the section 84 and codifies defense of insanity by using the term “unsoundness of
mind”—though the code nowhere has defined the expression unsoundness of mind and
neither explained it’s the expediency yet it mainly has been treated as equivalent to
“Insanity”.18

The essence of these ‘Rules’ contained in the following passage which is constantly quoted
and referred to by the judges: -

“The jury ought to be told in all cases that every man is presumed to be sane, and to possess a
sufficient degree of reason to be responsible for his crimes, until the contrary be proved to
their satisfaction; and that to established the defence on the ground of insanity, it must be
clearly proved that, at the time of committing of the act, the party accused was labouring
under such a defect of reason, from disease of mind, as not to know the nature and quality of
the act he was doing, or if he did know it, that he did not know he was doing what was
wrong.”19

Therefore, the essential ingredients of section 84 are as follows;

1. At the time of commission of the crime, the accused must not be of sound mind;
2. The unsoundness of the mind must be such as the accused, at the time when he was
doing the act which have been criminal and charged as offence, was incapable of
16
Ibid.
17
Id.
18
Supra note 9
19
Law Commission of India, “42nd Report on Indian Penal Code”90 (June, 1971).

7
 knowing the nature of the act he did or that he was doing what was wrong or contrary
to law.

In a case where it is proved that the accused has committed multiple murder, at a point of
time, when he is suffering from mental disorder of some sort and it is found that there was;

(a) Absence of any motive,

(b) Absence of secrecy,
(c) Want of pre-arrangement and;
(d) Want of accomplices, it would be reasonable to hold that the circumstances in
which the offence was committed are sufficient to support that the accused
suffered from unsoundness of mind.”20

Now, it is clear from the above definition that, the time of commission of the criminal act by
the accused is considered as crucial point of time because the appearance of insanity prior or
subsequent to the commission of the criminal act or offence by the accused is not sufficient to
exonerate the him from criminal liability of his criminal act.21

Unsoundness of Mind

As discussed earlier that the expression “unsoundness of mind” has not been defined in the
IPC.22 But it has been interpreted by the courts as equivalent to insanity. Yet, the definition of
the expression, according to the Black’s Law Dictionary23 is;

“A person of unsound mind is an adult who from infirmity of mind is incapable of managing
himself or his affairs. The term, therefore, includes insane persons, idiots, and imbeciles.”

Nonetheless, the Indian Contract Act24 under section 11 codifies the term “sound mind” as —
“a person is said to be of sound mind, if he is not disqualified from contracting by any law to
which he is subject.”

By virtue of both the definition of Black’s Law Dictionary and the section 11 of the Indian
Contract Act, 1872 it is thereby asserted that;

20
Supra note 9 at 146.
21
Supra note 6 at 101.
22
Ibid. at 103.
23 nd
2 edition/1910, available at: https://openjurist.org/law-dictionary/unsound-mind (last visited on 26th Nov,
2019)
24
The Indian Contract Act, 1872(9 of 1872), s.11.

8
The person who is disqualified by law and he at the time of the commission of the act had
been suffering from such a mental infirmity and cognitive faculties were so impaired as he
was incapable to know the nature of his conduct and if he did know it, he did not know that
what he was doing was wrong or contrary to law.

Thus, it can be justified by the judicial interpretation of the expression “unsoundness of

mind” carries within itself different meanings in different contexts and describes varying
degrees of mental disorder. In other words, every person who is suffering from mental
abnormality is not ipso facto exonerated from criminal liability and can not avail the “defense
of insanity” due his medical or clinical insanity.25 The unsoundness of the mind must be of a
nature that it could completely impaired the cognitive faculties of the mind and should be of a
weightage that could attract the provisions of section 84 of the IPC. For instance, if a person
does an act and due to “unsoundness of mind” he at the time of doing the act, is capable to
know the physical nature of his act but incapable to know that the act he did is wrong or
contrary to law. The term “wrong” means moral wrong and not a legal wrong because the
section 84 uses its alternative form—"contrary to law”.26

Nevertheless, it must be noted here that at the time of drafting of the IPC Lord Macaulay
perhaps in his mind had an idea of expanding the scope of the term “insanity” used under
English law and instead of using the same terminology it is apparent that he might have
preferred to use the expression “unsoundness of mind”. Thus, it is clear from the expediency
of the term in the provisions of section 84 of the IPC that the term “Insanity” is very limited,
while the “unsoundness of mind” covers a large area of Insanity.27

Kinds of Insanity

It is to be noted that there is no specific rule to decide as to the kinds of insanity but most of
the courts rely on the facts of the case. Thought it varies from case to case but as a result of
the Mc Naughton’s Case there are hardly two types of insanity and two court recognises only
“legal insanity” and not “medical or clinical insanity”. Thus, study shows that there are
hardly two types of insanity;

25
Supra note 6 at 103.
26
Ibid.
27
Janhavi Arakeri, “Insanity as a Defence under the Indian Penal Code” Available at:
https://blog.ipleaders.in/insanity-defence-indian-penal-code/(last visited on 26 th Nov 2019).

9
 a) Legal Insanity- A person is legally insane when he is incapable of knowing the nature
of the act or that what he was doing was wrong or contrary to law 28. This means there
must be the existence of incapacity of the person to know the nature of the act(s) he was
doing
on account of insanity and it must be of the nature which attracts the operation of
section 84 of the Indian Penal Code.

b) Medical or Clinical Insanity - Insanity in medical sense is the mere fact that the
accused is conceited, odd, irascible and his brain is not quite all right, or that the
psychical and mental ailments from which he suffered had rendered his intellect weak
and affected his emotions or indulges in certain unusual acts, or had fits of insanity at
shorts of intervals or that he was subject to epileptic fits and there was abnormal
behaviour or the behaviour is queer. Medical insanity is not sufficient to attract the
application of section 84 of the Indian Penal Code.29

MEANING AND SCOPE OF DEFENSE OF INSANITY

“The defense of insanity is taken by the defendant in a criminal trial, in case the accused is a
person of ‘unsound mind or whose cognitive faculties were so impaired, at the time when the
crime was committed, as not to know the nature of the act. But the ‘Defense of Insanity’, ipso
facto, is not available to every person who is suffering from mental disease.” 30

In other words, the accused who seeks exoneration from criminal liability of an act is to
prove legal insanity and not medical insanity31. Thus, the defendant is to plead not guilty and
prove, beyond reasonable doubt, that at the time of the commission of the criminal act, by
reason of unsoundness of mind, the accused was incapable to know the nature of the act, or
that he was doing what was either wrong or contrary to law 32. Therefore, the term “insanity”
carries within itself different meanings in different contexts and describes varying degrees of
mental disorder33 .

Nevertheless, the recognition of section 84 of the Indian Penal Code and the foundation for
the law relating to “Defense of Insanity” under Criminal Justice Administration was

28
Supra note 9
29
Ibid.
30
Supra note 9
31
Ibid.
32
Id.
33
Supra note 6 at. 103

10
developed by the common law of England in a decision of House of Lords rendered in the
case of R. v. Daniel Mc Naughton34.

The jurisprudence of the subject recognises “insanity” in legal sense and not in medical sense
and excuses only when the defendant proves the same beyond reasonable doubt. (Though the
onus of proving lies on the defendant and he is to prove the legal Insanity beyond reasonable
doubt that, at the time of commission of the act, by reason of unsoundness of mind, the
accused was in such a situation or condition as he was incapable to form criminal intent. Yet,
it has been held that during investigation if previous history of insanity of the accused is
revealed, it is the investigator whose honest duty to subject the accused to a medical
examination the Thought it is very tough to prove legal insanity but it is to be noted that the
sufficient degree of “knowledge” and “intention” is the minimum requirement to hold a
person for his criminal liabilities, is the principle of criminal jurisprudence. There are some
instances of medical or clinical insanity like Schizophrenia, Paranoia and Delusional disorder
of persecutory type which are exonerated from criminal liability 35. Thus, the scope of the
defense of insanity is such that it is not limited on a fixed rule and it varies from case to case.
The insanity and mental abnormality carry within itself different meanings in different
contexts and describes varying degrees of mental disorder36.

Defence of Insanity in English and Indian Law: Comparative Analysis

By analysing the both provisions under English as well as Indian law relating to the defence
of insanity, the researcher has thus made an attempt to compare the English and Indian law
considering their respective Criminal Justice Administration system.

The “defence of insanity” or the “defence of unsoundness of mind” are the terminologies
which have been used by both the jurisdictions in different significance and approach in their
respective Criminal Justice Administration.

34
Supra note 1
35
supra note 2 at 24.
36
Supra note 6 at 103.

11
 

CHAPTER 4

BURDEN OF PROOF OR BURDEN OF PERSUASION IN RELATION TO

DEFENSE OF INSANITY

Burden of proof is a legal term that encompasses two connected but separate ideas that for
establishing the truth of facts in a trial before tribunals on the United States: - The "burden of
production" and the "burden of persuasion" in a legal dispute—one party is initially
presumed to be correct and gets the benefit of the doubt, while the other side bears the
‘burden of producing evidence’ of the truth of facts needed to satisfy all the required factual
and legal elements of its case.37 Burdens may be of different kinds for each party, in different
phases of litigation. Thus, “burden of production” is a minimal burden to produce at least
enough evidence for the trier of fact to consider a disputed claim.38

On the other hand, the “burden of proof" is always lies on the person who brings a claim in a
dispute. It is often associated with the Latin maxim semper necessitas probandi incumbit ei
qui agit, a translation of which in this context is: "the necessity of proof always lies with the
person who lays charges.39

In case of defense of insanity “burden of persuasion” is followed under Criminal Justice

administration of most of the countries as well as the common law countries. Allocating the
“burden of persuasion” on insanity is a particularly thorny issue. Because insanity is an
affirmative defense that does not negate the elements of the prima facie case, the federal
Constitution permits the burden of persuasion to remain on the defendant.40

Nevertheless, once the defendant produces evidence, to the satisfaction of the court, to raise
the issue, many of the jurisdictions pass the “burden of persuasion” to the prosecution to
prove sanity beyond a reasonable doubt. The reason to pass the burden of persuasion to the
defendant is that the defendant’s mental disorder in a fundamental manner may affect
culpability. The argument of the risk of error on the part of the state by bearing the burden of
persuasion is reasonable. This argument is premised on the social belief that it is better for ten

37
Available at: https://en.wikipedia.org/wiki/Burden_of_proof_(law)(last visited on 30th Nov 2019).
38
Ibid.
39
Id.
40
Stephen J. Morse, “Excusing the Crazy: The Insanity Defense Reconsidered”824(1958).

12
truly sane people to be acquitted than for one truly insane person to be convicted; our society
prefers a wrongful acquittal to a wrongful conviction. 41 According to my belief, however, that
the law should pass the burden of persuasion on the defendant in which the duty of
prepondering evidence would also lie on the defendant. All factors which are considered on
guilt such factors also include universally accepted defenses for instance self-defense as well
insanity defense, need not be proven by the prosecution. So that by placing the burden,
society would enable minimising the risk of success of insanity defenses in questionable
cases. Meanwhile, it would permit the defense for succeeding in the few cases in which it is
morally and legally fit and proper. Although the prosecution may have its own expert for
examining the defendant. Thus, defendant nevertheless holds an advantage on the issue. This
is so because, the defendant in this case is best able to provide testimony about past mental
state of the accused. In cases of insanity where motives are often in issue, the usual inferences
about mental states of the accused are tested by observing behaviour cannot be ascertain with
the same degree of certainty as in cases involving technical mens rea elements. This is
because of the cognitive behaviour of the defendant is allegedly both unusual and abnormal. 42
It is too difficult if the prosecution is required to prove sanity. By doing this, it will allow the
defendant to be raised in an unjustifiably high number of cases. Finally, defense of insanity is
not constitutional requirement but solely is a voluntary act of compassion by the state.

Therefore, the prosecution is to allocate an alternative for burden of persuasion, but in a

lower manner that is, “beyond reasonable doubt” to “a preponderance of the evidence” or
“clear and convincing evidence.” This would increase the chances of less risk to some extent,
to the defendant for successful insanity pleas.

41
Ibid.
42
Id.

13
 

CHAPTER 5

ADVERSARIAL AND INQUISITORIAL SYSTEM: AN OVERVIEW

The role of public prosecutors under Criminal Justice Administration, sometimes, may differ
and it depends on the legal tradition to which a particular jurisdiction adopts it in her system.
There are two types of legal traditions which dominate the nature of investigation and
adjudication process around the world.

(a) Adversarial legal system—Common law countries use an adversarial system to

determine facts in the adjudication process. The prosecution and defence compete
against each other, and the judge serves as a referee to ensure fairness to the accused,
and that the legal rules criminal procedure followed. The adversarial system assumes
that the best way to get to the truth of a matter is through a competitive process to
determine the facts and application of the law accurately.43

(b) Inquisitorial legal systems—The inquisitorial system is associated with civil law
legal systems, and it has existed for many centuries. It is characterized by extensive
pre-trial investigation and interrogations with the objective to avoid bringing an
innocent person to trial. The inquisitorial process can be described as an official
inquiry to ascertain the truth, whereas the adversarial system uses a competitive
process between prosecution and defence to determine the facts. The inquisitorial
process grants more power to the judge who oversees the process, whereas the judge
in the adversarial system serves more as an arbiter between claims of the prosecution
and defence.44

Both these systems have variations around the world, as different countries have modified
their criminal procedure in various ways over the years in balancing the interests of the State
in apprehending and adjudicating offenders with the interests of individual citizens who may
be caught up in the legal process. As this Module will show, these different legal traditions
impact the ways in which criminal cases are investigated and prosecuted.45

43
Available at: https://www.unodc.org/e4j/en/organized-crime/module-9/key-issues/adversarial-vs-inquisitorial-
legal-systems.html(last visited on 28th Nov 2019)
44
Ibid.
45
Id.

14
 

CHAPTER 6

ALLIED PROBLEMS;

Advancement of Modern-Psychiatry Knowledge, Challenges For its Adaptation and

Vulnerabilities.

For the past 176 years, there is no change in the English as well in the Indian laws relating to
defense of insanity. Although an attempt was made in 1971 by the law commission of India
in their 42nd Report. The alternative concept that human behaviour is the result of an
interaction between biological and environmental factors other than free choice failed to
impress the criminal justice system because of a direct threat to a society's deep-seated need
to blame someone than themselves for criminal harms that occur.46 There is long history of
insanity defense and it was developed after many years of tests that have been tried and tested
by the courts of the common law countries. McNaughton's “Rules” emphasised only on the
distinction between right and wrong and put it emphasises on “cognitive-faculties” rather
than a moral or affective definition dominated in its formulation. Behavioural impulsiveness
and irresistible drives have been neglected. The modern-medico psychiatry knowledge and
understandings reveals that the neurological evidences of compulsion, lack of impulse
control, rationality tests without the inclusion of lack of control seem to be outdated.

46
Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5282615/(last visited on 1st Dec, 2019).

15
 CHAPTER 7

JUDICIAL INTERPRETATIONS, PRECEDENT AND CASE LAWS OF DEFENSE

OF INSANITY

The term “insanity’ or “unsoundness of mind” as discussed earlier is that a person is said to
be “insane” when the his cognitive faculties, at the time of commission of the act , which is
criminal in nature and charged as offense, were so impaired as he was incapable to know the
nature of the act and that if he did know it, he did not know what he was doing was contrary
to law. Judicial system has labelled insanity as a “state of incapability” which impairs the
person from distinguishing right from wrong.

Further the term “unsoundness of mind” is broader concept than “insanity”. The latter covers
a crucial point of time whereas the former is an extended form of cognitive failure. Insanity is
deep rooted in the Mc Naughton Rules but unsoundness of mind has been codified under
section 84 of the IPC.

In a recent judgment of Accused X v. State of Maharashtra 47, the Hon’ble Supreme Court
which constitutes as three judges’ bench has explained and interpreted the importance and
guidelines of the Mental Health Care Act, 201748 stating that “every person with mental
illness shall have a right to live with dignity”. In the present case the accused was convicted
of rape and murder of two minor girls.

Severe Mental Illness’ under the ‘International Classification of Diseases (ICD)’, which is
accepted under Section 3 of the Mental Health Care Act, 2017, generally include;49

1. schizophrenic and delusional disorders

2. mood (affective) disorders, including depressive, manic and bipolar forms

3. neuroses, including phobic, panic and obsessive– compulsive disorders

4. behavioural disorders, including eating, sleep and stress disorders

5. personality disorders of different kinds.

47
see the review petition (criminal) no. 301 of 2008 in Criminal Appeal No. 680 of 2007; decided on
12.04.2019, available at: https://indiankanoon.org/doc/155869274/(last visited on 1st Dec,2019).
48
The Mental Health Care Act, 2017(No.10 OF 2017).
49
Supra note 47

16
Durham/New Hampshire test

The strict Mc Naughton standard for the “defense of insanity” was widely used until the
1950s and the case of Durham v. United States50. In the Durham case, the court ruled that a
defendant is entitled to acquittal if the crime was the product of his mental illness (i.e., crime
would not have been committed but for the disease). This test, also called the Product Test, is
broader than either the Mc Naughton test or the irresistible impulse test. The test has more
lenient guidelines for the defense of insanity, but it addressed the issue of convicting mentally
ill defendants, which was allowed under the Mc Naughton “Rule”. However, the Durham
standard drew much criticism because of its expansive definition of legal insanity.

Foucha v. Louisiana51

It was a U.S. Supreme Court case in which the court addressed the criteria for the
continued commitment of an individual who had been found not guilty by reason of insanity.
The individual remained involuntarily confined on the justification that he was potentially
dangerous even though he no longer suffered from the mental illness that served as a basis for
his original commitment.

Opinion of the Court

50
214 F.2d 862 (D.C. Cir. 1954)—is a criminal case articulating what became known as the Durham rule for
juries to find a defendant is not guilty by reason of insanity—"an accused is not criminally responsible if his
unlawful act was the product of mental disease or mental defect.”
It was to enable psychiatrists to "inform the jury of the character of the defendant's mental disease" so that a jury
could be "guided by wider horizons of knowledge concerning mental life" so that juries could make
determinations based on expert testimony about the disease. It was patterned on State v. Pike. It was adopted by
only two states, for a short time but is still influential on debate over legal insanity. The decision was criticized
for leaving a jury with no standard to judge impairment of reason or control, for not defining mental disease, and
for leaving the jury dependent on expert testimony. Available at:
https://en.wikipedia.org/wiki/Insanity_defense(last visited on 2nd Dec, 2019).

51
504 U.S. 71 (1992), available at: https://www.google.com/search?
sa=X&rlz=1C1CHBF_enIN871IN871&sxsrf=ACYBGNQ_gEt-
LdX9i2ifGbpoW1C_NmPEvA:1575768626137&q=Foucha+v.
+Louisiana&stick=H4sIAAAAAAAAAHWRv07CUBTGvSYleMGElMQ_dSHEGGMM_QOF1sHFyAQxUX
bS3t7SQrmXcgtYVxMfwMEHcHbxMWTTwZiYODCY-
AaMIrbI4na_88v5znfOTXJ5KHZFqdgalU1f2XAJM4gbhDkL25gwnEMGw2wM1sWWKMtI1QLNDu0xWGo
ag7UfYSttsxcDpyQhORJK3yx21EiUWqSkx8TsaqxTXpjLQ6I7nh9Dx6yUrUj4xct-
s7JkyKxorFYhphm99Y52Rf7ayciLAJKDYBhn81EftZc26nV6vrpIpEt-HK-t-
wjpEzABqczX9CMrvIHbh6dX8AxgpkYpw154jj0jwFaD8rswcUqC2eV4AaaF5HxSGDr7KwKEC8XfAZi6wE
GD1qnl2iF_A_hrANfquGviPjuz-SqEJ9TzMApcSngN7gibIloURA-3DK85_5OZ8zb8D-
YLyuHL5_sjtwe5eUGY30HtMbV5kEhymdUtoErS9PjoF6fvuWyVDpBj5IaFXI0OXOYaxPgGH3fRIR4CAAA
&ved=2ahUKEwjo6NXJ86TmAhWDoOkKHdefDj8Qri4wF3oECBEQKg(last visited on 5th Dec 2019)

17
The Court ruled that potential dangerousness was not a justification to retain a person found
not guilty by reason of insanity if no mental illness was present. James P. Manasseh argued
the cause for petitioner. With him on the briefs was Martin E. Regan, Jr. An acquittee cannot
be confined as a mental patient without some medical justification for doing so. Although the
individual may be dangerous, the Court ruled that a person committed on the basis of an
insanity defense and who has regained his sanity cannot continue to be confined on the sole
justification that he remains dangerous. A (formerly) insane acquittee must remain both ill
and dangerous to continue to be involuntarily committed. This ruling also applies to
convicted persons. "There is no conceivable basis for distinguishing the commitment of a
person who is nearing the end of a penal term from all other commitments."

Therefore, the State of Louisiana was not justified in retaining the petitioner unless it could
prove that serious public safety concerns existed to justify the acquittee's continuing
classification as dangerous.

Clark v. Arizona52

This is a United States Supreme Court case in which the Court upheld the constitutionality of
the defense of insanity used by Arizona.

The Court affirmed the murder conviction of a man with paranoid schizophrenia for killing a
police officer.

The man had argued that his inability to understand the nature of his acts at the time that they
were committed should be a sufficient basis for showing that he lacked the requisite mental
state required as an element of the charged crime.

The Court upheld Arizona's restriction of admissible mental health evidence only to the issue
of insanity and not to show that the defendant did not possess the required mental intent level
necessary to satisfy an element of the crime. Evidence is admissible only to show that the
defendant was insane at the time of the crime's commission.

In this case, the defendant knew right from wrong and so he could not qualify under
Arizona’s defense of insanity.

52
548 U.S. 735 (2006), available at: https://en.wikipedia.org/wiki/Clark_v._Arizona(last visited on 5th, Dec
2019)

18
Decision

In a 5-4 decision, in favour of Arizona, the US Supreme Court decided that the Arizona court
could limit the amount of evidence used to plea a person's sanity for a defendant's defense of
insanity. Justice Souter, believes that having a defendant prove his insanity in order to justify
they were unable to clearly think while committing the crime would disprove his claim for
insanity because they were able to think clearly to prove they were insane. The court cited the
Arizona Supreme Court's decision in State v. Mott, which refused to allow a psychiatric
testimony to invalidate a criminal's intent and to uphold that Arizona does not allow evidence
of a mental illness to neutralize the mens rea of a crime. Mens Rea is an element of criminal
responsibility regarding whether or not there was intention or knowledge of wrongdoing
while a crime was being committed. The court also determined that due process does not
require a State to use both areas of the Mc Naughton insanity test. Rather, a State may adopt
an insanity test that focuses solely on moral incapacity.

CASE LAWS53

State of MP v. Ahamdullah

Judgement: In these circumstances the Supreme Court rejecting his plea of insanity,
convicted the accused of the offence of murder (setting aside the acquittals of both the
session court and the high court), and sentenced him to rigorous imprisonment for life.

Ayyangar J said thus:

In the normal case, the proper punishment for the heinous and premeditated crime committed
with human brutality would have been a sentence of death. But taking into the account the
fact that the accused has been acquitted by the session’s judge, an order which has been
affirmed by the high court – we consider that the ends of justice would be met if we sentence
the accused to rigorous imprisonment for life.

Dayabhai Chhaganbhai Thakkar v. State of Gujarat

Trial court however rejected the contention on the ground that the statements made to the
police immediately after the incident did not showed any sign of insanity. This conviction
53
Available at: https://www.lawteacher.net/free-law-essays/medical-law/lunacy-or-unsound-mind-mental-
abnormality.php(last visited on 5th Dec,2019).

19
was confirmed by the high court. The accused made an appeal to the Supreme Court. The
Supreme Court also upheld the conviction of the accused and laid down certain criteria
according to which an accused in entitled to the defence under the provision. It said that in
determining whether the accused has established his case under the purview of Indian Penal
Code, 1860, s. 84, ‘the court has to consider the circumstances which preceded, attended and
followed the crime. The crucial point of time for determining the state of mind of the accused
is the time when the offence was committed. The relevant facts are motive for the crime, the
previous history as to mental condition of the accused, the state of his mind at the time of the
offence, and the events immediately after the incident that throw a light on the state of his
mind’.

Ratanlal v. State Of MP

The appellant on 22 January 1965, set fire to the grass lying in the khalyan of Nemichand. On
being asked why he did it, the accused said; ‘I burnt it; do whatever you want’. The accused
was arrested on 23 January 1965. He was referred to a mental hospital. The psychiatrist of the
hospital reported that the accused remained silent, was a case of maniac depressive psychosis,
and needs treatment. The report declared the accused to be a lunatic in terms of the Indian
Lunatic Act, 1912The issue before the courts was whether insanity might be used as defence
against a charge of mischief by fire with intent to cause damage under the IPC, s. 435. The
crucial point in this case was whether unsound mind may be established at the time of
commission of the act. The Supreme Court held that the person was insane and acquitted him.

Sant Bir v. State of Bihar

it is not possible as to why the state government should have insisted before releasing the
petitioner from the jail when the petitioner was found to be completely recovered and
completely fit for discharge and there was absolutely no warrant or justification in law to
detain him.

The result was that the petitioner continued to rot in jail for a further period of ten years,
though he was fully recovered and there was no reason or justification to continue his
detention in the jail. It is shocking that a perfectly sane person should have been incarcerated
within the walls of the prison for almost 16 years without any justification in law whatsoever.

20
Held: The Supreme Court further observed that it should be a matter of shame for the society
as well as the administration to detain a person in jail for over 16 years without authority of
law.

Tukappa Tamanna Lingardi v. State of Maharashtra

In a Bombay case a woman, the sister of the accused reported at the police station that he had
come to banda weekly bazaar on that day, which was Monday, for selling potatoes and
onions and further, that one person by the name ajjappa (victim) had quarrelled with her over
the purchase of goods. The ASI of police who was on duty could not follow the language of
the woman who was accompanied by the accused, the ASI sent a constable to bring the PS.,
the person complained against by the woman. But in the presence of the said constable
suddenly the accused attacked the deceased and beheaded him. If transpired in the evidence
that he accused had the fits of lunacy and, while in such fits, he used to say that a tiger was
coming to eat him or to kill him. He used to hear the voice of the tiger and used to refuse to
take his food. The accused used to have sleepless nights and if at all he was asleep, he used to
get up and run away under the stress of fear from the tiger. On the date of the offence, the
appellant was wandering in the forest of a heavy sickle (pal koyta) expecting a tiger to come.
After a thorough analysis of the evidence and circumstances, the high court held that the
accused was entitled to the protection of section 84, IPC.

Baijanti v. State

The accused was suffering from TB and stomach pain for the last sometimes and one day
along with her infant jumped into the well in which incident the child lost her life but the lady
accused was taken out alive. On being prosecuted u/s 302 she pleaded insanity but the court
refused as she had no kind of mental ailment at the time of committing the crime. However,
she was said to have committed the act with the knowledge that the death was likely to be
caused thereby. Hence her conviction was altered from u/s. 302 to one u/s 304 for committing
the offence of culpable homicide not amounting to murder.

Babasaheb Thombre V. State of Maharashtra

In the present case the accused was found guilty of committing murder of his wife. He was
convicted for committing offence punishable under section 302 of the Indian penal code and

21
is sentenced to suffer imprisonment for life by the Additional Session’s Judge. The post
mortem report was prepared by an autopsy surgeon who stated that the cause of the death of
the wife of the accused was a shock due to the head injury with laceration of the brain.

The accused pleaded insanity as a defence and stated that he was suffering from
schizophrenia. But the evidence proved that he was not suffering from any kind of mental
illness and was in full control of all his cognitive faculties prior to, at the time and after the
commission of the offence.

The appeal was thus dismissed in the higher court and the accused was convicted for murder.

CHAPTER 8

22
Conclusion and Suggestions

The “Defense of Insanity”, as I defined in the body of text of this paper, is one of the ‘general
exceptions’ to the Criminal Justice Administration System in which the transgressor is
exonerated from criminal liabilities, due to “unsoundness of mind” at the time he was
committing such act which has been charged as an offence against him. The ‘general
exceptions’ on defense of insanity is based on the “Rules” laid down in the case of R. v.
Daniel Mc Naughton which are generally known as Mc Naughton’s “Rules.”

However, the Mc Naughton’s “Rules” have been in critics for a long period and become
obsolete and inappropriate to the meaning of defense of insanity taken under Criminal Justice
administration of this age—the information age in which we are living today.

The crux of the Mc Naughton’s “Rules” is that, “insanity” does not only affect the cognitive
faculties but it also affects the whole personality including both the “will” and the “emotions”
of the accused. The present definition of insanity under criminal jurisprudence covers only to
the limitations of the “cognitive” and “moral aspects” of the defendant’s actions and ignores
the “irresistible impulses” that perhaps been the cause of his, I would rather comment, intense
actions—forced him to commit such act which have been charged as an criminal offence
against him.

Although, the Law Commission of India in its 42nd Report, after considering its desire for
introducing the test of Reformation under the section 84 of the IPC, gave the opinion in
negative due to the complicated “Medico-Legal” issues would it introduced in the Trials.

Therefore, it is suggested that the Law Commission of India should reconsider its views on
Reformation under the section 84 of the IPC since, the human society is a dynamic concept
which has been changing with the passage of the time. Hence, the strict interpretation of the
“substantive” and “procedural” laws will result into the failure of the “Criminal Justice
Administration System” and lead to “miscarriage of justice”.

BIBLIOGRAPHY

23
(Primary Sources)

1) The Indian Penal Code, 1860 (45 of 1860).

2) The Indian Evidence Act, 1872 (1 of 1872).

3) The Mental Health Care Act, 2017 (10 of 2017).

4) Criminal Procedure Code,1973 (2 of 1974).

5) The Indian Contract Act, 1872 (9 of 1872).

 STATUTES
Constitution of India, 1950

(Secondary Sources)

Books

K I Vibhute. PSA Pillai’s Criminal Law. India: Lexis Nexis, 12th Edn., (2014).

Justice K T Thomas, and M A Rashid. Ratanlal & Dhirajlal The Indian Penal Code. India:
Lexis Nexis, 35th Edn., (2017).

Journals

J. Thomas Dalby, “The case of Daniel Mc Naughton: Let’s get the story straight”, 27
American Journal of Forensic Psychiatry 17 (2006).
Reports

Law Commission of India, “42nd Report on Indian Penal Code”90 (June, 1971).
NCJRS,“The Insanity Defense And Its Alternatives (A Guide for Policy makers)”,1(May,
1984).
Stephen J. Morse, “Excusing the Crazy: The Insanity Defense Reconsidered”824(1958).

Webliography

Janhavi Arakeri, “Insanity as a Defence under the Indian Penal Code” Available at:
https://blog.ipleaders.in/insanity-defence-indian-penal-code/(last visited on 26th Nov 2019).
Dictionary

Black’s law Dictionary, 2nd edition (1910).

24
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