INSANITY legal context. It is further classified into legal






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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.

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

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.

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 Insanity

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. The insanity defence is a topic
that seems to garner a lot of attention even though it is rarely used and only
a few cases that invoke are actually successful. So why is this topic so
popular considering its rarity? The answer could be a combination of highly
publicized cases that use it and the public’s misunderstanding of exactly what
happens when someone is found “not guilty by reason of insanity”.  The
theory of defence tells that people who are insane cannot have the intent
necessary to commit a criminal action because they either do not know that
action is wrong or cannot control their behaviour even when they know the act
is wrong. However, this theory is rather controversial as it is complicated to
define insanity itself, and the situations in which it can be used to excuse
criminal responsibility are complex to define.  It
means that even after it is verified that a defendant has made a crime, he may
avoid criminal liability using a legal insanity defence. An insanity defence
constitutes different in all jurisdictions. The insanity plea is
considered to be a very affirmative defence. Using an affirmative defence means
that the defendant recognizes and acknowledges the crime that was committed,
but does not believe he should be held completely guilty in it. In such a case
a person who pleads insanity doesn’t agree that he should hold responsible
because he is legally insane, or was mentally sick at the time the crime

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.

first acquittal came in the case of James Hadfield1 case when he was being
charged with attempted murder of King George III. In the case Hadfield took the
plea of insanity on the ground of delusion and pleaded that the wild beast test
was unreasonable. He was acquitted of the charge.


The 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.

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.

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.”

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 insanity

1. 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?

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 Rajasthan6

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”.

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 Jharkhand9

The 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.

perspective on Insanity as a Defence

In 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

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 trial

A 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.

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 proceedings

In 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

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

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.


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.

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

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

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

5 8 ER 718, Volume 8

2007(3)ACR3308(SC)  2007(8) SCC 66

1993 Cri LJ 2554

(2008) 16 SCC 109

2011 (11) SCC 495 , AIR 2011 SC 627

10 (1994)
1 Bom. Cr. 575

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

(2010) 10 SCC 582

Section 10

Article 64

15 1990 3 S.C.R. 1990 3 S.C.R. 


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