INSANITY in the ordinary condition of mind, a

   INSANITY AS ADEFENCE IN INDIA AND AROUND THE WORLDABSTRACTInsanityis the state of mind where the person is not in control of his actions which inthe ordinary condition of mind, a prudent person would not indulge in such adiscourse.

There may arise circumstances where due to such a condition, thethinking ability of such a person is impaired and he commits an unlawful act ora lawful act by unlawful means. However, the Criminal Jurisprudence has heldthat despite of an unlawful act committed by an insane person, he shall not beheld liable for the same. Insanityin the general sense is different from insanity in the legal context. It isfurther classified into legal and medical insanity. The former is the conditionwhen the person committing the offence must not be able to understand thenature of the offence the person is committing and the fact that it is an actwhich is contrary to the provision of law whereas the latter deals with themedical condition of the person who has been charged with the commission of theoffence.ThisResearch paper shall expound the origins of insanity as a defence and shallwork towards analysing the stand of various international criminal systems ingeneral and India in particular. The criminal courts and legislatures all overthe world have laid down various tests which are used to establish insanity asa defence and the paper shall further analyse these tests. ThePaper also deals with the competency of the accused to stand trial or thefitness to plead of the accused which is necessary for a fair trial for theperson who is accused for the offence.

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Keeping in mind all these factors, weneed to examine the inception, evolution, implementation and interpretation ofthe insanity as a defence        Introduction: Origin and Progressionof the Defence of InsanityInsanityis a factor which can drive a person out of his sense and impair the ability ofperson to think as a prudent man thus leading a person to act in a wrongfulmanner which can lead to the person committing a criminal offence. The defenceof insanity is part of the criminal in our country and abroad where the accusedcan prove that he was not in the right state of mind when the offence wascommitted. Insanity defenceis 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 topicthat seems to garner a lot of attention even though it is rarely used and onlya few cases that invoke are actually successful.

So why is this topic sopopular considering its rarity? The answer could be a combination of highlypublicized cases that use it and the public’s misunderstanding of exactly whathappens when someone is found “not guilty by reason of insanity”.  Thetheory of defence tells that people who are insane cannot have the intentnecessary to commit a criminal action because they either do not know thataction is wrong or cannot control their behaviour even when they know the actis wrong. However, this theory is rather controversial as it is complicated todefine insanity itself, and the situations in which it can be used to excusecriminal responsibility are complex to define.  Itmeans that even after it is verified that a defendant has made a crime, he mayavoid criminal liability using a legal insanity defence.

An insanity defenceconstitutes different in all jurisdictions. The insanity plea isconsidered to be a very affirmative defence. Using an affirmative defence meansthat 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 casea person who pleads insanity doesn’t agree that he should hold responsiblebecause he is legally insane, or was mentally sick at the time the crimehappened.

MerriamWebster defines insanity as a severelydisordered state of the mind usually occurring as a specific disorder. The pleaof Insanity has over the years in different cases of different countries aroundthe wold formed the basis of acquittal for many accused who have been able toprove that their capacity to think as a prudent man was paralysed byunsoundness or any other mental disorder suffered by them . The defendant hasburden on him to prove that he was suffering from a disorder at the time of himcommitting the offence.Over the years a few tests have been laid down to determinewhether a person falls under the category of an insane person who would beentitled to the defence of insanity. Thefirst acquittal came in the case of James Hadfield1 case when he was beingcharged with attempted murder of King George III. In the case Hadfield took theplea of insanity on the ground of delusion and pleaded that the wild beast testwas unreasonable. He was acquitted of the charge. TESTS LAID DOWN OVERTHE YEARSThe first test to determine the plea of insanity waspropounded by British courts which was known as 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.

2 He was found guilty of thecrime and was convicted for a sentence of imprisonment for life.Atest to determine insanity was propounded in the United States in the case of Durham v. United States3 in1954 wherein the court held that “the defendant will not be held guilty if theunlawful act was a result of mental disease or mental defect”. The courtfurther rejected the idea of the inability to know right from wrong or theinability to control impulses. The court promoted the Durham rule whichpromotes the consideration of the mental state of the accused. Inthe caseof 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.”Thecase of R v.

Mc’Naghten case5which has led to formation of the Mc’Naughten rules is one of the mostimportant guiding principle for Indian criminal law while dealing with theissue of insanity1. that is everyperson is presumed to be sane, until the contrary is established.2.

To establish the defence of insanity, it must be clearlyproved that at the time of committing the crime, the person was so insane asnot to know the nature and quality of the act he was doing or if he did knowit, he did not know that what he was doing was wrong.3. The test of wrongfulness of the act is in the power todistinguish between right and wrong, not in the abstract or in general, but inregard to the particular act committed.Indian Perspective –How it deals with Plea of Insanity as a Defence? Difference between legal andMedical insanity?Section84 of the Indian penal Code, 1860 states that Act of a person of unsound mind.

– “Nothing is an offencewhich is done by a person who, at the time of doing it, by reason ofunsoundness of mind, is incapable of knowing the nature of the act, or that he isdoing what is either wrong or contrary to law”.Section 84 provides the benefit of doubt if it isproved that the accused at the time of commission of offense was labouringunder such a defect of reason, from disease of the mind, as not to know thenature 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. Thecrucial point of time for deciding whether the benefit of this section shouldbe given or not, is the material time when the offence takes place. In comingto that conclusion, the relevant circumstances are to be taken intoconsideration. The above principle was highlighted in Bapu @ Gajraj Singh vs State Of Rajasthan6TheHon’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 legal insanityhas merely to prove the basic fact and rely upon the normal presumption of lawthat everyone knows the law and the natural consequences ofhis act. The court also held that “Medical insanity should be distinguishedfrom legal insanity. Legal insanity would always be different from eccentricityor changed behaviour”.Theapex court in Hari Singh Gond vs State of Madhya Pradesh8 differentiated betweenlegal insanity and medical insanity and explained that the standard to be applied is whether accordingto the ordinary standard, adopted by reasonable men, the act was right orwrong. The mere fact that an accused is conceited, odd irascible and his brainis not quite all right, or that the physical and mental ailments from which hesuffered had rendered his intellect weak and had affected his emotions andwill, or that he had committed certain unusual acts, in the past or that he wasliable to recurring fits of insanity at short intervals, or that he was subjectto getting epileptic fits but there was nothing abnormal in his behaviour, orthat his behaviour was queer, cannot be sufficient to attract the applicationof this section.

The same principles have also been reiterated invarious landmark judgements by the apex court as well as high courts of countryin matters such as Surendra Mishra vs State of Jharkhand9The Supreme court in the case of State ofMaharashtra v. Umesh Krishna Pawar10 held that the onusto prove that the accused was so insane as not to be able to distinguishbetween right and wrong. Whether accused on the day of the incident kneweverything he was doing, he would not fall in this exception. The Apex court held in Ratan Lal vs State of MadhyaPradesh11 and Sudhakaran vs Stateof Kerala12 that It is now well-settled that the crucial point of time at whichunsoundness of mind should be established is the time when the crime isactually committed and the burden of proving this lies on the accused.

Internationalperspective on Insanity as a DefenceIn South Australia the Criminal Law Consolidation Act 1935 (SA) Australia in section 269Cdeals with mental competence of the person at the time of the commission of thecrime. According to the section a person is mentally incompetent to commit anoffence if, at the time of the conduct alleged to give rise to the offence, theperson is suffering from a mental impairment and, in consequence of the mentalimpairment 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 theconduct. The Swiss Penal Code13 providesthat ‘any person suffering from a mental disease, idiocy or serious impairmentof his mental faculties, who at the time of committing the act is incapable ofappreciating the unlawful nature of his act or acting in accordance with theappreciation may not be punished’.Penal Code of France14 providesthat ‘there is no crime or offence when the accused was in state of madness atthe time of the act or in the event of his having been compelled by a forcewhich he was not able to resist’.In Canada, The defence ofmental disorder is codified in section 16 of the Criminal Code.

In order to establish a claim of mental disorder theparty raising the issue must show on a balance of probabilities firstthat the person who committed the act was suffering from a “disease of themind”, 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) didnot know it was “wrong”. The meaning of the word “wrong”was determined in the Supreme Court case of R. v. Chaulk15 whichheld that “wrong” was NOT restricted to “legally wrong” butto “morally wrong” as well.

Competency to stand trial Another kind of insanity which needs to beconsidered is the competency to stand trial.Competency does not address the guilt or innocence of a party. 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 hisdefence. When a person who is found to be mentally incompetent to standtrial is usually hospitalized for treatment until such time that theperson is competent to stand trialA thorough competency assessment must focus firston gathering history specific to the particular case. Standardized testing isuseful, but not to the exclusion of first tailoring an expert assessment to therelevant issues of a given case. A precise and conscientious report also willinclude soliciting information from collateral historians whenever possible.Review of hospital and corrections records, including private communications,yields considerable information about competency to stand trial, especiallywhen staff may be consulted directly. Input about motivation, mental health,and ability to understand material relevant to his proceeding may successfullybe gathered from confidantes and family.

In some instances, particularly whenthe court raises a competency concern because of a defendant’s behaviour,impartial officers of the court should be engaged. The competency assessmentmay warrant the forensic expert actually observing him in court16.TheU.S. Supreme Court ruled in Dusky v. United States17 that a defendant musthave adequate ability to lucidly consult with his attorney and to have rationaland factual comprehension of the charges against him in order to be foundcompetent to stand trial.In the case of Medina vs California18 theCourt concluded that due process only requires “the most basic proceduralsafeguards” and once the defendant is provided “access to proceduresfor making a competency evaluation,” due process does not furtherrequire “the state to assume 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 principle as the United States is followedin countries like Australia where the same grounds have been provided undersection 269H of the CriminalLaw Consolidation Act 1935 (SA)In England the principle of fitness to plead is followed whichalso deals with the ability of the defendant to understand the proceedingsagainst him. In England and wales after a plea is raised the decision is mostlybased on psychiatric evaluation. The test offitness to plead is based on the ruling of Alderson B.  In thelandmark case of R v Pritchard19. The court held that theaccused will be unfit to plead if he is unable either: 1) to comprehend thecourse of proceedings on the trial, so as to make a proper defence; 2) to knowthat he might challenge any jurors to whom he may object; 3) to comprehend theevidence; or 4) to give proper instructions to his legal representatives. In Scotland a simpler test is followed as laid down inHMA 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 the provision restricting theavailability of an absolute discharge to an accused person who is deemed both”permanently unfit” and not a significant threat to the safety of thepublic. Presently a Review Board may recommend a judicial stay of proceedingsin the event that it finds the accused both “permanently unfit” andnon-dangerous. The decision is left to the court having jurisdiction over theaccused.

In India persons with mental illness need to undergo a medicalexamination called fitness to stand trial ‘as per the Code of CriminalProcedure, 1973 Sec 328, and Sec 329. Section 328 of CrPC (Procedure in case ofthe accused being lunatic) states that when a Magistrate holding aninquiry has reason to believe that the person against whom the inquiry is beingheld is of unsound mind and consequently incapable of making his/herdefence, the Magistrate shall inquire into the fact of such unsoundness ofmind, and shall cause such person to be examined by the civil surgeon of thedistrict or such other medical officer as the State Government may direct, andthereupon 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 isusually postponed until such time as the person is judged competent. A personfound psychiatrically incompetent for trial is usually sent for treatment toregain competence (even against his/her will). Section 329of the code of criminal procedure deals with the trial of a person with anunsound 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 the unsoundness of mind and incapacity ofthe accused shall be deemed to be part of his trial before the Magistrate orCourt.

The Calcutta high court 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                                                    Insanity has over the years developed as adefence for those who were not in a prudent thinking capacity at the time ofthe commission of the offence. Insanity disturbs one state of mind and theperson is not able to understand the consequences of the act he is committingand the fact that the act is contrary to law. The person who has committed theoffense was suffering from a defect of reason or was suffering from mentaldisease which impaired his ability to think. Countries all over the world havesimilar grounds to determine whether the person can be classified as insane atthe time of the commission of the offence.

Insanity can be explainedthat the standard to be applied is whether accordingto the ordinary standard, adopted by reasonable men, the act was right orwrong. That it needs to be proved by the defence that at the crucial point of timeat which unsoundness of mind took place is the time when the crime is actuallycommitted and the burden of proving this lies on the accused. It has beenobserved by courts and legislations all over the world that legal insanity atthe time of the commission of the offence is necessary to be proven whilemedical insanity cannot form grounds for acquittal of the accused.  It has been held thatthere is no crime or offence when the accused was in state of madness at thetime of the act or in the event of his having been compelled by a force whichhe was not able to resist’. The paper also focuses on the competency to standtrial or fitness to plead of the accused. The principle of competency to standtrial applies when the person is so insane that he would not be able toinstruct his counsel properly which hamper the right to a fair trial for theperson against whom the charges have been raised.

Such type of insanity deals with the ability of theindividual to understand the charges and penalties that have initiated againsthim and would not be able to assist the defence in the manner a sane andprudent man would be able to do in his defence1  1800, 27 St.Tr.128.

2R v Arnold (1724) 16 How St. Tr. 7653 214 F.2d 862 (D.

C. Cir. 1954)4471 F.2d 969, 1005 n.79 (D.C. Cir. 1972).

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R. 16https://www.forensicpanel.com/expert_services/psychiatry/criminal_law/competency_to_stand_trial.html17  362 U.S.

402(1960)18 505 U.S. 437 (1992) 19 (1836) 7 C. & P. 30320 1942 JC 75 21 2004 2 S.C.R.

489, 2004 SCC 4622 (2000) 3 Cal LT115 : (2000) 2 Cal LJ 125