INSANITY AS A DEFENCE IN CRIMINAL LAW

Submitted by
NITHEESH KUMAR. K
Reg. No. BC0190029

Name of the Guide

Madam,. MRINMOYEE MUKHERJEE
Assistant Professor

TAMIL NADU NATIONAL LAW UNIVERSITY

(A University established by Act No. 9 of 2012)
Tiruchirappalli
Tamil Nadu – 620 027
DECEMBER - 2020
MRINMOYEE MUKHERJEE

Assistant Professor in History

Tamil Nadu National Law University

Tiruchirappalli

Tamil Nadu – 620 009

CERTIFICATE

This is to certify that the project work entitled “INDIAN HIGH COURTS ACT,1861,

1911 : AN ANALYSIS” is a bonafide record of the research work done by Nitheesh

kumar. K under my supervision and guidance. It has not been submitted by any other

University for the award of any degree, diploma, associateship, fellowship or for any

other similar recognition.

Place: Tiruchirappalli
Date:
Signature of the Guide
 DECLARATION
I, NITHEESH KUMAR, do hereby declare that the project
entitled“INSANITY AS A DEFENCE IN CRIMINAL LAW
”submitted to Tamil Nadu National Law School in partial fulfillment
of requirement for award of degree in Under Graduate in Law to
Tamil Nadu National Law School, Tiruchirappalli, is my original
research work. It and has not been formed basis for award of any
degree or diploma or fellowship or any other title to any other
candidate of any university.

Counter Signed Signature of the Candidate

Project Guide
 ACKNOWLEDGEMENT
At the outset, I take this opportunity to thank my Professor (DR.M. BRITTO

STALIN) from the bottom of my heart who have been of immense help during

moments of anxiety and torpidity while the project was taking its crucial shape.

Secondly, I convey my deepest regards to the Vice Chancellor (DR. V. S.

ELIZABETH) and the administrative staff of TNNLS who held the project in high

esteem by providing reliable information in the form of library infrastructure and

database connections in times of need.

Thirdly, the contribution made by my parents and friends by foregoing their

precious time is unforgettable and highly solicited. Their valuable advice and timely

supervision paved the way for the successful completion of this project.

Finally, I thank the Almighty who gave me the courage and stamina to confront

all hurdles during the making of this project. Words aren’t sufficient to acknowledge

the tremendous contributions of various people involved in this project, as I know

‘Words are Poor Comforters’. I once again wholeheartedly and earnestly thank all the

people who were involved directly or indirectly during this project making which

helped me to come out with flying colours.

NITHEESH KUMAR K
BC0190029
INTRODUCTION:

The definition of insane is someone who acts strangely because their brain doesn’t work
normally. Insane persons are generally characterized by certain abnormal mental or
behavioral patterns. Insanity can be demonstrate as violations for society norms it may be
dangerous to other people in the society and even for themselves. The word sane is derived
from the Latin adjective word sanus which literally means “healthy”. In modern usage the
term insanity is an informal unscientific term denoting ‘mental instability’ thus the terms
insanity defense is the legal definition of mental instability. The term psychosis is used to
denote the there is a presence of delusion or 0f hallucination or both in the patient in medical
field and also psychiatric illness is psychopathology not mental insanity. The Latin word
“copos mentis” is sound mind and a euphemistic term for insanity is “non compos mentis”.
The meaning of Mens rea in law is having and guilt mind or criminal intent when the was
done by the person. In United States criminal law “ insanity may serves as an affirmative
defense to criminal acts and thus does not need to negate an element of the prosecution.”
There is some differs in U.S definition of insanity but most follow the guidelines of the
Model Penal Code. In every jurisdiction there is a question whether or not the defendant has
mental illness. Most of the court will not accept the diagnosis of a personality disorder for
insanity defense, but they accept the major mental illness like psychosis. And the second
question arises in the jurisdiction whether the mental illness affects the defendant ability to
distinguish between right and wrong. In other words whether the defendant know that his
behavior or act of offence was against the law. Additionally some jurisdiction add the
question of whether or not the defendant was in control of their behavior at the time of the
offence. For example if the defendant was not in the state of steady mind or compelled by
some aspect of their mental illness to commit the wrongful act then the defendant is not in
control of their act at the time of the offense. The forensic mental health specialists submit
their research to the court. “The question of the sanity or insanity is a legal question and not
medical one the judge and the jury will make the final decision regarding the defendant’s
status regarding an insanity defense.” In most of the jurisdiction if the insanity is accepted
then the defendant is admitted to a psychiatric institution for at least 60 days and reevaluated
at least yearly after that. The defense of insanity in the ambit of the neglecting the liability in
the civil law suit not applicable. The insanity factor with respect of the side of plaintiff in
civil law aspect has certain obligation for the filing of suits is limited under the case were the
condition insanity is being deprived or cured or a new state that has certain repose. There are
some studies of the clinical pictures of patients in the prison. In the study of forensic
psychiatry in 2011 there are 5024 prisoners were evaluated in a semi structured interview
program it shows the analysis that 4002 that is 79.6% the prisoners could be diagnosed with
the disease. Another study from India potray a very gloomy picture of patients in forensic
psychiatry settings and advocate for there is a need to streamline the procedure of referral,
diagnosis, treatment, and certification. To address this issue of streamlining the process of
evaluation of insanity defence and certification, this article focuses on semi-structured
assessment in the Indian context based on landmark Supreme Court decisions. In addition, it
will also present a model for evaluating a defendant's mental status examination and briefly
discuss the legal standards and procedures for the assessment of insanity defence evaluations.
Section 84 of Indian Penal Code (IPC) deals with the “act of a person of unsound mind” and
discusses insanity defence. However, in the recent past some of the U.S. states (such as
Montana, Idaho, Kansas, and Utah) have banned insanity defence. This issue has raised a
serious debate among medical, psychology and law professionals across the world.

Literature Review:

Indian J Psychiatry. 2016 Dec; 58(Suppl 2): S191–S198.

doi: 10.4103/0019-5545.196832

There has been little improvement in perception and knowledge for the past 150 years other
than the autonomy and freedom to choose the right and wrong for criminal responsibility.
The alternative hypothesis that human conduct is the product of an interaction between
biological and environmental factors rather than free choice did not impress the criminal
justice system because of a direct challenge to the deep-seated need of a community to blame
someone other than themselves for criminal damage that occurs.There is a possibility that the
significance ratio is optimal for 'evidentiary relevance' and that expert testimonials should be
quality controlled. With developments in neuroscience, some of the existing theories about
the existence of voluntary actions underlying different protections may need to be discarded
or altered by the law.

Indian J Psychol Med. 2015 Oct-Dec; 37(4): 381–387.

doi: 10.4103/0253-7176.168559
In criminal prosecutions, insanity defence is mainly used. It is founded on the premise that
the defendant suffered from serious mental disorder at the time of the crime and was thus
unable to understand the essence of the crime and discern right from wrong conduct,
rendering them not legally responsible for the crime.This article focuses on the latest ruling
of the Supreme Court on the protection of insanity and the principles used in Indian courts.
Researchers present a model for determining the mental status exam of a defendant and
briefly examine the legal requirements and protocols for evaluating insanity defence tests.
Forensic Psychiatric Preparation and Clinical Services Providing Centers around the country
to increase manpower capacity are desperately required to launch a standardised graduation
course.

The insanity defense: Legal standards and clinical assessment June

1993Applied and Preventive Psychology 2(3):163-178 DOI: 10.1016/S0962-
1849(05)80122-2

While the insanity defence is used infrequently, legal and mental health practitioners have
gained considerable attention. We review the historical history of insanity defence principles
in this article and define the norms commonly used in the United States.We present a model
for determining the mental non-responsibility of a defendant, and we briefly address the legal
requirements and procedures for reviewing release acquittals for insanity. We address several
research, legal, and jurisprudential concerns relevant to the insanity defence and non-
responsibility tests in the article.

The Insanity Defence: An Argument for Abolition

Claire HoggFirst Published August 7, 2015 Research Article

https://doi.org/10.1177/0022018315596708

This article takes an abolitionist approach (or 'the insanity defence') against insane
automatism. With clear reference to the definition of 'manifest madness' by Arlie Loughnan,
it argues that mentally ill defendants are badly supported not only by the defence of insanity
as presently conceived, but by any defence that focuses on their status as 'mentally ill' rather
than the actual excusatory elements of that illnessHowever, it contends that abolition
proponents do not presume that existing criminal defences are currently equipped to account
for those elements. What is needed is a comprehensive overhaul of all criminal defences,
taking into account mentally ill and/or disordered offenders, to which the removal of the
defence of insanity must be secondary

Understanding the use of the insanity defense

George L. Blau Ph.D., J.D. Hugh McGinley Richard Pasewark

Psychologists are also called upon to offer their interpretation of the insanity plea, a legal
term. Crime cases involving the insanity plea consistently attract the attention of the media
and politicians who are considering limiting the use of the defence, but there is no national
data on the use and potential misuse of the defence of insanity.This paper discusses what little
is understood and indicates that more research is needed on the use and effectiveness of the
plea in order to make psychologically and socially responsible decisions

Journal of International Criminal Justice, Volume 14, Issue 4, September

2016, Pages 793–814, https://doi.org/10.1093/jicj/mqw042

argued that both the volitional and cognitive aspects of the protection of insanity in the Rome
Statute are incongruous with international crime, considering that there are significantly
different circumstances in which violations of international and domestic criminal law take
place.

SCOPE OF INSANITY DEFENSES:

McNaughton’s rule:

Edward Drummond was shot and killed in 1843 by Daniel McNaughton, who was mistaken
for Sir Robert Peel by a wood turner from Glasgow. The evidence was brought to prove that
he had been completely deceived on this subject, but from the outset his state of mind was
appealing because McNaughton felt that when he had to be coaxed into pleading not guilty,
he was persecuted by the Tories. I was compelled by the Tories in my native city to do this.
They followed me to France, to Scotland, to England, all over. They literally follow me
everywhere I go. They've accused me of crimes that I'm not guilty of; they're doing all they
can to threaten and presecute me. "They actually want to kill me." This was McNaughton 's
argument during the investigation. The judge stopped the trail, the jury delivered the special
verdict without summing up and without withdrawing immediately after hearing the
testimony of seven medical witnesses, five proposals were drawn up which named
McNaughten rule considering him completely insane and was forcibly sent to the Bethlem
hospital. The following are the important points of McNaughton rule

1) Every man should said to be sane until the contrary proved the sufficient degree of
reason is responsible for his crime.
2) Every insane person is punishable “if he knows” at the time of wrongful act or crime.
To establish a defense on insanity the accused by defect of reason or disease.
3) Even the steady mind cannot figuerout the nature and its consequences so the insane
person as to be consider in the same situation as to responsibility.
4) As if the facts with respect to which the delusion exist were real
5) It was the jury’s role to decide that the person was insane or not

This rule became the great model of insanity defence. Section 84 IPC, also in India, the
insanity protection statute, is based solely on McNaughten laws. From the day it was drafted,
no modifications were made to the Law of the Commission of India in 1971 to reconsider
section 84 in its 42nd report, but no changes were made. "Section 84 of the IPC deals with
the" crime of a person of unsound mind. "Nothing is an offence committed by a person who
is unable to grasp the essence of the act or why he is doing what is either wrong or contrary to
the law at the time of doing it because of unsoundness of mind. Medical insanity does not fall
under section 84 of the IPC. Only legal insanity is involved. A dichotomy of section 84 IPC
reveals the following ingredients:

1) The defendant was insane

2) He was insane at the time of the act or crime not before or after the act
3) Because of insanity the defendant was incapable of knowing the nature of act or
incapable to know that the act of law

A basic concept of criminal jurisprudence is clearly expressed in Section 84 IPC, which is (a)
"Actus nonfacit reum nisi mens sit rea" (an act does not constitute guilt unless performed
with a guilty intention) and (b) "Furiosi nulla voluntas est" (a person with mental disorder
does not have free will). This suggests that an act does not constitute a crime unless it is
performed with a guilty motive called "mens rea." Thus, Section 84 IPC fastens no blame on
people with mental illness because they may have no reasonable thought or the guilty intent
required.

Irresistible impulse test as a defense:

Irresistible impulse is a kind of insanity where, even though he knows that the act is wrong,
the entity is unable to control his actions. The Irresistible Impulse Test was considered to be a
modification of McNaughton 's rule in some instances; in others, it was understood to be a
different test. While the Irresistible Impulse Test was considered a necessary corrective to the
selective interpretation of McNaughton, it still had some critiques of its own.

M'Naghten is usually supplemented by the irresistible impulse insanity defence, because the
emphasis is on the consciousness (cognitive) of the defendant and the will of the defendant
(ability to regulate behaviour). The first factor is the same as McNaghten in jurisdictions that
accept the irresistible compulsion insanity defence; the defendant must suffer from a mental
disorder or illness of the mind. The principle of volition, or free choice, however, is
introduced by the second element. If the defendant is unable to regulate his or her actions due
to a mental defect or illness, the defendant's behaviour is excused even if the defendant
acknowledges that the behaviour is incorrect (State v. White, 2010). This is a softer stance
than M’Naghten, which does not exonerate a defendant who is aware conduct is wrong. The
challenge for the trier of fact in an irresistible impulse jurisdiction is distinguishing between
conduct that can be controlled and conduct that cannot.

Durham rules:

In the case of Durham v. United States (1954), which is also referred to as the Durham test or
product test, the Durham rule was created. The argument was against the defendant that he
was accused of breaking into the house and arguing with the defendant for insanity in the
defence. The Court of Appeal declares that these tests, such as the McNaughton rule and the
irresistible impulse test, are not adequate. In addition to these exams, the Durham rule can
thus be used.The defense as two main components:

1) The defendant must be confirmed with a mental disease or mental disorder. But the
fact that the main crux of the interpretation of the words are explained in an
ambiguous manner in the Durham case, the language of the judicial view indicatwws
an effort to rely more on test of objective standards rather than focusing on the
defendant’s subjective cognition.
2) The main element to be focused on the topic is about the factor of causation and the
cause of the criminal act taken place by the outcome of a insane act the there is a rule
for exemption for the conduct is present.
Substantial capacity:

The Model Penal Code in 1962 produced the substantive ability test. In 1982, John Hinckley
successfully pleaded insanity for the assassination attempt of the then president through a
significant ability examination on the trail. "The substantial capacity test is as follows:" A
person is not liable for criminal activity if he lacks substantial capacity at the time of such
conduct as a result of mental disorder or defect either to understand the criminality of his
conduct or to comply with the requirements of law.

In general, under the substantial ability test, it is simpler to determine insanity since both the
cognitive and volitional criteria are scaled down to more flexible levels. The significant
capacity test, unlike the M'Naghten insanity defence, relaxes the criterion for complete
inability to understand or recognise the difference between right and wrong. Instead, the
defendant must lack significant power, not absolute. The “wrong” in the substantial capacity
test is “criminality,” which is a legal rather than moral wrong. In addition, unlike the
irresistible impulse insanity defense, the defendant must lack substantial, not total, ability to
conform conduct to the requirements of the law. Another difference in the substantial
capacity test is the use of the word “appreciate” rather than “know.” As previously
mentioned, respect requires an emotional quality, which indicates that proof of the character
or personality of the defendant is important and most likely admissible to support the
prosecution.

ROLE OF PSYCHIARTRIST:

It is completely important to provide a standard assessment protocol for all patients pleading
insanity defence. It is sad that there are no such structured procedures in our country to date.
Psychiatrists are also called upon to perform mental health assessments and counselling. In
addition to care, courts can order different certifications as well. This includes:

1. Certifying the presence or absence of psychiatric illness if the defendant claims for an
insanity plea (defendant's mental status when the alleged offense took place);

2. Assessment of fitness to stand trial in cases where mental illness incapacitates

cognitive, emotional and behavioral faculties of an individual causing serious impact
on the ability to defend the case (defendant's present mental status and his competence
during adjudication).
Psychiatrist should consider inpatient admission for a comprehensive evaluation of the
defendant.

The psychiatrist's duty is to educate the court, explain psychological concerns, have truthful
and rational viewpoints based on reliable facts and clear reasoning. Proforma forensic
psychiatry assessment, a updated version of the 2014 Kumar. This Nimhans Comprehensive
Workup Proforma for Forensic Psychiatry Patients-II has been used for semi-structured
evaluation of forensic psychiatric cases in the Institute for many decades. This proforma is
regularly changed in accordance with the clinical assessment and legal requirement.

Although technically, this might not always be practicable, the suspect should be interviewed
as early as possible in time for the crime. The defendant must be told about the intent of the
assessment and the lack of confidentiality at the start of the assessment. The date and time of
examination, demographic data, identifying marks and injuries to the body should be reported
by a psychiatrist. The history of the presentation of disease, past history , family history,
personal history and premorbid personality should be comprehensively studied. Psychiatrists
should never fail to consider the use of medications in the past and the present. Psychiatrists
should try to assess the defendant's mental state at the time of the crime. By open-ended
questions, he should try to get a detailed account of the case. It would be wise to ask the
offender to provide a step-by - step account of his conduct, feelings, biological, occupational,
and social functioning starting 1 week before the offence and to be investigated until 1 week
after the offence is committed. Before, during and immediately after the commission of the
crime, a thorough investigation should be carried out on his intellect, actions, emotions and
perception. By posing open-ended questions, psychiatrist should inquire to assess the
defendant's understanding of the law, the essence of his act and also whether he is in a
position to understand right and wrong.

CASE ANALYSIS:

CONCLUSION:

Psychiatrists may be asked to assist the court in determining whether the ability of a person
to create the intent necessary to make that person legally guilty was affected by certain
mental disorders. The medical discipline describes the mental status of the patient on a
continuum ranging from extremely diseased to completely healthy. However, the legal
language, either criminally responsible or not responsible, is clearly categorical in
nature.While the medical treatment of individual patients is a concern of a psychiatrist, the
courts are concerned with protecting society from the possible danger of these patients.
Psychiatrist must understand that it is not only the fact that the individual suffers from mental
illness, but it is the totality of the circumstances seen in the light of the evidence on record to
demonstrate that the individual was also unable to understand the nature of the act or
misconduct or that it was contrary to the law is appreciated in the court of law for insanity
defense.Forensic Psychiatric Informal Training and Clinical Services Providing Centers are,
above all, few in number nationwide. Forensic psychiatry needs to be given the utmost
importance in order to provide a fair and quick trial.