INSANITY DEFENCE:AN ESCAPE ROUTE FOR CRIMINALS

-SNIGDHA SHARMA
12112061
B.A.LL.B(Hons), L2101

ABSTRACT
The Indian legal system governs and takes care of the world’s largest democracy.
When the legal system has to deal with a wide variety of races, castes, classes and
various other social distinctions, it becomes very difficult to make such a law
which accommodates the needs of everybody. That is the reason many of our
laws become vulnerable and the guilty takes advantage of it, to let themselves go
scot free. One such contention can be seen under the Indian penal code which is
known as insanity as a defence. Insanity as a defence can be described as that a
person cannot be held guilty or accountable if he is not of sound mind. It is a
necessary legal principle which ensures that a person who is of unsound mind and
cannot comprehend the consequences of his or he actions should not be punished.
However for some people this has become a get out of jail free card, as those
people who are not of unsound mind commit their crimes and hide behind the veil
of insanity as a defence. It is common knowledge amongst most of the populace
how unsoundness of mind is used to get out of the clutches of law. This research
paper seeks to question whether the various measures taken up to avoid the
misuse of this section are sufficient in themselves. This research paper also seeks
to prove and find many other alternative measures or tests which might prove
much more efficient than the present scenario. We can also draw comparison with
other countries and take insight of their understanding of insanity as a defence.

KEYWORDS
Insanity defence,legal and medical insanity,,M’Naghten principle,legal tests
RESEARCH METHODOLOGY
To answer the objectives of the research I’ve used historical method , scientific
method, empirical method and evaluative method . The critical analysis of the
defence of insanity has also been incorporated. For the completion of my
research mainly I’ve used primary sources in which books,Ipc, literature ,case
laws has been used. In secondary source I’ve focused on journals,articles and
research papers and besides this I’ve explored about this topic on scc
online,manupatra,lexis nexus,Jstor and AIRonline. To arrive at a meaningful
discussion, only relevant articles were selected for the review.
LITERATURE REVIEW
PAPER CITATION: Math SB, Kumar CN, Moirangthem S.
Insanity Defense: Past, Present, and Future. Indian J Psychol
Med. 2015 Oct-Dec;37(4):381-7. doi: 10.4103/0253-
7176.168559. PMID: 26702167; PMCID: PMC4676201.
This paper mainly examines the insanity plea in india , majorly focus
is given to the role of psychiatrist in assisting the court , narrow view
regarding the burden of proof is mentioned, differentiation of legal
insanity and medical insanity has been provided, not much emphasis
has been given to the M’Naghten case which eventually is the basis of
section 84 of the Indian penal code.
In my research paper I will be trying to fill these gaps where a global
view regarding the insanity plea is mentioned , how insanity defence is
being misused by the criminals as an escape route, common
misconceptions has been addressed about the insanity defence , more
clarity on insanity plea is given using landmark cases, drawbacks of the
Indian legal system is also discussed along with recent developments
and reforms, explored different methods and tests which helps in
determining the insanity , beneficial and adverse effects of the insanity
plea is also mentioned along with the detailed critical analysis

CONTENTS
I. INTRODUCTION
II. BACKGROUND
III. OBJECTIVES
IV. INSANITY AS A DEFENSE AND ITS TYPES
V. EVOLUTION OF INSANITY DEFENCE
VI. LEGAL AND MEDICAL INSANITY
 VII. MISUSE OF INSANITY AS A DEFENCE
VIII. MISCONCEPTIONS ABOUT THE INSANITY DEFENCE
IX. LANDMARK CASES
X. BURDEN OF PROOF
XI. LAW OF INSANITY IN INDIA
XII. LAW OF INSANITY IN OTHER CRIMINAL CODES
XIII. THE DRAWBACKS OF THE INDIAN LEGAL SYSTEM
XIV. CRITICIS OF M’NAGHTEN PRINCIPLE
XV. REFORMS
XVI. A CHANGE IN THE LEGAL TEST
XVII. BENEFICIAL AND ADVERSE EFFECTS OF THE INSANITY
DEFENCE
XVIII. CRITICAL ANALYSIS

I INTRODUCTION
The concept of responsibility connects with our most fundamental convictions
about human nature and dignity and everyday experience of guilt and innocence
and blame and punishment.1 Punishing a person, who is not responsible for the
crime, is a violation of the basic human rights and fundamental rights under the
Constitution of India. It also brings the due process of law, if that person is not in
a position to defend himself in the court of law, evoking the principle of natural
justice.2 The affirmative defense of legal insanity applies to this fundamental
principle by excusing those mentally disordered offenders whose disorder
deprived them of rational understanding of their conduct at the time of the crime.
Hence, it is generally admitted that incapacity to commit crimes exempts the
individual from punishment. This is recognized by the legislation of most of the
civilized nations.[1,3] Even in India, Section 84 of Indian Penal Code (IPC) deals
with the “act of a person of unsound mind” and discusses insanity defense.3
However, in the recent past some of the U.S. states (such as Montana, Idaho,

1
Morse SJ, Bonnie RJ. Abolition of the insanity defense violates due process. J Am Acad Psychiatry
Law. 2013;41:488–95.
2
Gostin LO, Larry OG. A Human Condition: The law relating to mentally Abnormal Offenders. Vol. 2. MIND;
1977.
3
Gaur KD. Textbook on the Indian Penal Code. New Delhi: Universal Law Publishing; 2009.
Kansas, and Utah) have banned insanity defense.4 This issue has raised a serious
debate among medical, psychology and law professionals across the world.
Very little research has been done on this topic in India, however, there are few
studies on exploring the clinical picture of the patients in prison. A landmark
study in the forensic psychiatry of Indian setting occurred in 2011, in which 5024
prisoners were assessed on semi-structured interview schedule reported that 4002
(79.6%) individuals could be diagnosed as having a diagnosis of either mental
illness or substance use. After excluding substance abuse, 1389 (27.6%) prisoners
still had a diagnosable mental disorder.5 Another study from India portray 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.6 To address this issue of streamlining the process of evaluation of
insanity defense 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 defense evaluations.
Under the IPC, mens rea is an essential element in crime. However, in such
offences where mens rea is missing and the act was carried out as a result of
distinct persuasive circumstances, such cases falls within General Exceptions
provided under the Penal Code under Section 76- 106.As a result, the person is
held legally accountable for his acts. If the defence is proved successfully in the
court, exemption is given. In criminal prosecution, the defence of insanity is used
to show that the perpetrator had a severe mental illness when the act actually
occured. Resulting that the individual may not be aware of what they were doing
in their conscious thought. In some situations, a person who is not mentally sick
may attempt to avoid punishment by claiming insanity; however, insanity defence
is granted in just a few circumstances.Even though it was put in place for better
justice, most people exploit the defence of insanity to avoid legal penalties. Such
a condition creates a serious problem, as people will become increasingly
involved in such crimes since there will not be any deterrence. The research
question for this article is threefold: How insanity defence is a loophole for
criminal? Whether it is appropriate everytime? When should Insanity Defence

4
Neville K. The Insanity Defense: A Comparative Analysis Senior Honors Theses. Paper 244. 2010.
5
Math SB, Murthy P, Parthasarathy R, Naveen Kumar C, Madhusudhan S. Mental Health and Substance Use
Problems in Prisons.
6
Kumar D, Viswanath B, Sebestian A, Holla B, Konduru R, Chandrashekar CR, et al. Profile of male forensic
psychiatric inpatients in South India. Int J Soc Psychiatry.
used? This article throws light on the concept of defence of insanity, its positive
and negative effects and judicial approach on the same.
 Insanity – Meaning
Insanity refers to a person’s incompetency to comprehend the essence of their
actions or to recognize that they are bad or illegal. It refers to a mental disease in
which a person’s mental capacities are harmed to the point that he is unable to
comprehend the implications of his actions. It is challenging to define insanity in
a way that meets legal requirements. Insanity is generally associated with mental
illness or some form of mental ailment for the general public. According to
Black’s Law Dictionary, the meaning of Insanity is “any mental disorder severe
enough that it prevents a person from having legal capacity and excuses the
person from criminal or civil responsibility”. Insanity is a legal term, whereas
“mental illness”, “mental disorder”, “mental defect” refers to an illness that
requires psychiatric or psychological assistance. As a result, one can have a
mental illness, disease or disorder without being legally insane; however one
cannot be insane without having a mental illness
BACKGROUND
Since ancient Greece and Rome, laws dealing with insanity have been a part of
the legislation. Insanity Defence was originally reported in 1581 “English legal
treatise”, which said that if a “lunatic” murders someone while insane, they
cannot be held liable. With the advancement of criminal jurisprudence, in the 18th
Century the British Courts devised “Wild Beast” test, according to which the
accused will not be held guilty if he had knowledge of “an infant or a wild beast”.7
It was the first legal statute that laid the groundwork for the law of insanity. It
also marked the beginning of Defence of Insanity. After the “Wild Beast Test”,
several tests were devised to determine if a person is legally insane including
“Insane Delusion Test” 7 and the “Good and Evil Test”.8 These three tests were
the primary rules dealing with Insanity Defence and they constructed the
understructure for the famous McNaughton Test.9
In R v. McNaughton10, the English courts established the McNaughton’s Test,
which is the cornerstone of legislations dealing with insanity and Section 84, IPC.
In this case, Edward Drummond was killed by a man named McNaughton who
mistook him for someone else. The court ruled his discharge on the grounds of

7
6 R v. Arnold. 1724, 16 St.Tr.695.
8
Hadfield Case. 1800, 27 St.Tr. 128
9
Suresh Bada Math, Channaveerachari Naveen Kumar & Sydney Moirangthem, “Insanity Defense: Past,
Present and Future”
10
R v. McNaughton, (1843) 8 Eng. Rep. 718, 722.
his mental disorder. However, the jury declared him insane and recommended
that he be sent to a mental asylum. Following this decision in 1843, there was a
deliberation in “House of Lords”, during which McNaughton’s Ruleswere
established which are as follows:
1. “Every man is presumed to be sane and to possess a sufficient degree of reason
to be responsible for his crimes, until the contrary is proved.
2. To establish the defence of ground of insanity, it must be clearly shown that at
the time of committing the act, the accused was so insane that he was
incapacitated to know the nature of the act or that his act was wrong or contrary
to law.
3. If the accused was conscious that the act was one which he ought not to do and
if such act was contrary to law, then he is punishable.
4. A medical witness who has not seen the accused before the trial should not be
consulted to assess the mental state of the accused.
5. Where the criminal act is committed by a person under some insane delusion,
which conceals from him, the true nature of the act he is doing, he will be under
the same degree of responsibility as he had imagined his surrounding situations
to be.”
These rules formed precedents in the area of insanity
defence. The guidelines underlines the need of observing an accused’s
“understandability” in case when the person has committed a crime. 11 In order to
claim insanity, the accused must show that he was experiencing from a lack of
judgment associated with mental illness, either because he was unaware of the
character and nature of the crime, or because he didn't quite understand that his
conduct were wrong.12
The term “insanity” is not defined anywhere in Indian legislations. Under Section
84 of the IPC, insanity defence is provided as “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”. The defence of insanity, according to the code, is based
on McNaughton’s Rule. Section 84 enshrines two essential maxim of criminal
law, namely:

11
Pratyush Pandey, “Insanity defence: A loophole for criminals”
12
Janhavi Arakeri, “Insanity as a defence under the Indian Penal Code”
1. “Actus reus non facit reum nisi mens sit rea”- “the act is not culpable unless
the mind is guilty”;
2. “Furiosi nulla voluntas est”- “a mad man has no free”.
As a result, no culpability is assigned to people suffering
from mental illnesses because they are incapable of rational thought or the
essential guilty intent.

OBJECTIVES
 Objective of the research paper is to explore as to how the Plea of
insanity is examined by the courts during trial and what kind of
investigation is undertaken for establishing the mental state of the
accused in order to give or deny the benefit the plea of insanity.
 Further purpose of the study is to ascertain as to what kind of latest or
updated tools of medical science are adopted to conclude about the status
of insanity of the accused.
 Another objective is to inquire about the use latest developments in the
field of psychic sciences to find out the real extent of the plea of insanity
or mental disorder.
 Further objective of the study is to verify the best yardsticks to be applied
for determining the extent of mental disability.
 Last but not the least objective of the study is to finally differentiate
between the mental disorders resulting into temporary mental incapacity
and the disorders resulting into permanent mental incapacity and
disability of the accused to know the nature of his crime

INSANITY AS DEFENCE AND ITS TYPE

The plea of insanity is a defence in which accused admits the crime done by
him but claims that he is not responsible for it due to mental illness. It is more
of an excuse rather than an explanation for what the person did. In a criminal
trial, a defendant can plead this defence. An evaluation of the criminal’s
mentality has become an absolute necessity. In the context of “mens rea” as
well the “state of mind” of the suspect is crucial in criminal law. When it comes
to mens rea, emphasis is on the state of mind of a person who is not mentally ill.
Consideration must be given to criminal’s mental consciousness and not merely
bodily actions. As an Insane person’s state of mind is incapable of forming a
criminal intent. The “Insanity Defence” is a tactic employed in criminal law in
India to absolve a suspect of a crime. It's predicated on the notion that the
person was struggling with mental sickness and couldn't understand his acts.
Insanity is of two types:
1. Permanent Insanity: A problem in which an individual undergoes a mental
illness on a continuous basis. Past records and experiences can be used to
demonstrate that the person is perpetually insane which makes the individual
incompetent of comprehending the seriousness of any circumstance.
2. Temporary Insanity: A disorder in which a person becomes insane only
once in a while or for a short span of time. Depression, anxiety disorders,
schizophrenia and other transient mental illnesses are the examples of
temporary insanity. In the defence of temporary insanity, there are two
conceivable outcomes: “not guilty because insane” and “guilty but cannot be
tried because insane”.13
According to Indian Penal law, to qualify the exception under section 84, it
should be established that the suspect was experiencing a deficiency of
understanding caused by insanity at the time of the alleged offence, leaving him
incapable of grasping the essence of the conduct or that he was committing an
illegal or unlawful conduct. 5A person's mental illness has never been accepted
as an excuse for committing a crime. The mental condition of the suspect should
be serious enough that he is completely unable to comprehend the essence of
the offence.

EVOLUTION OF INSANITY DEFENCE

Since ancient Greece and Rome, laws dealing with insanity have been a part of
the legislation. Insanity Defence was originally reported in 1581 “English legal
treatise”, which said that if a “lunatic” murders someone while insane, they
cannot be held liable. With the advancement of criminal jurisprudence, in the
18th Century the British Courts devised “Wild Beast” test, according to which
the accused will not be held guilty if he had knowledge of “an infant or a wild
beast”. 14 It was the first legal statute that laid the groundwork for the law of
insanity. It also marked the beginning of Defence of Insanity. After the “Wild

13
Russell Covey, “Temporary Insanity: The Strange Life and Times of the perfect defense”
14
6 R v. Arnold. 1724, 16 St.Tr.695
Beast Test”, several tests were devised to determine if a person is legally insane
including “Insane Delusion Test” 15 and the “Good and Evil Test” 16 . These
three tests were the primary rules dealing with Insanity Defence and they
constructed the understructure for the famous McNaughton Test.17
In R v. McNaughton18 , the English courts established the McNaughton’s Test,
which is the cornerstone of legislations dealing with insanity and Section 84,
IPC. In this case, Edward Drummond was killed by a man named McNaughton
who mistook him for someone else. The court ruled his discharge on the
grounds of his mental disorder. However, the jury declared him insane and
recommended that he be sent to a mental asylum. Following this decision in
1843, there was a deliberation in “House of Lords”, during which
McNaughton’s Rules were established which are as follows:
1. “Every man is presumed to be sane and to possess a sufficient degree of
reason to be responsible for his crimes, until the contrary is proved.
2. To establish the defence of ground of insanity, it must be clearly shown that
at the time of committing the act, the accused was so insane that he was
incapacitated to know the nature of the act or that his act was wrong or contrary
to law.
3. If the accused was conscious that the act was one which he ought not to do
and if such act was contrary to law, then he is punishable.
4. A medical witness who has not seen the accused before the trial should not
be consulted to assess the mental state of the accused.
5. Where the criminal act is committed by a person under some insane
delusion, which conceals from him, the true nature of the act he is doing, he will
be under the same degree of responsibility as he had imagined his surrounding
situations to be.”
These rules formed precedents in the area of insanity defence. The guidelines
underline the need of observing an accused’s “understandability” in case when
the person has committed a crime.19 In order to claim insanity, the accused must
show that he was experiencing from a lack of judgment associated with mental

15
Hadfield Case. 1800, 27 St.Tr. 128
16
Bowler’s case. 1812, 1 Collinson Lunacy 673
17
Suresh Bada Math, Channaveerachari Naveen Kumar & Sydney Moirangthem, “Insanity Defense: Past,
Present and Future”
18
R v. McNaughton, (1843) 8 Eng. Rep. 718, 722.
19
Pratyush Pandey, “Insanity defence: A loophole for criminals”
illness, either because he was unaware of the character and nature of the crime,
or because he didn't quite understand that his conduct were wrong.20
The term “insanity” is not defined anywhere in Indian legislations. Under
Section 84 of the IPC, insanity defence is provided as “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”. The defence of insanity,
according to the code, is based on McNaughton’s Rule. Section 84 enshrines
two essential maxim of criminal law, namely:
1. “Actus reus non facit reum nisi mens sit rea”- “the act is not culpable unless
the mind is guilty”;
2. “Furiosi nulla voluntas est”- “a mad man has no free”.
As a result, no culpability is assigned to people suffering from mental illnesses
because they are incapable of rational thought or the essential guilty intent

LEGAL AND MEDICAL INSANITY

Section 84 of the Indian Penal Code prescribes exam of the criminal

responsibility as separated from clinical exam. It may be cited that the dearth of
will isn't always simplest because of a lack of knowledge of adulthood however
additionally a bad attitude. This corrupt attitude, which gives for freedom from
crook activity, contrasts with the clinical and criminal profession. From a
clinical factor of view, it's miles truthful to mention that everyone, whilst
committing a crook act, is insane and consequently wishes to be free of crook
behavior; at the same time as it's miles a criminal concept, someone ought to be
taken into consideration the identical character, so long as he is aware of that
the act dedicated is illegal.

In the case of Surendra Mishra v. State of Jharkhand21 , It changed into

mentioned that Each mentally sick character isn't always a ipso facto free of a
crook bond.

Moreover, with inside the case of Shrikant Anandrao Bhosale v. The State of
Maharashtra22, the Supreme Court, in identifying the case below Section 84 of

20
Janhavi Arakeri, “Insanity as a defence under the Indian Penal Code”
21
2005 (4) JCR 439 Jhr
22
(1973) 4 SCC 79
the IPC, held that Simplest the circumstantial evidence should show that the
case changed into dedicated. changed into added: "Mental infection earlier than
and after the incident is a fact."

Unsoundness of thoughts should be on the time of the fee of the Act.

The first factor a courtroom docket to be taken into consideration whilst

protecting madness is whether or not the accused has mounted that he turned
into unsound on the time of committing the act. The word madness isn't always
utilized in Section 84 of the penal code.

MISUSE OF INSANITY AS A DEFENCE

In the present scenario, there are very high chances that the defence of insanity
can be very well abused as it is a very strong weapon to escape the charges of
an offence. It is impossible to prove that the person was incapable of
understanding the nature of the act. Defence lawyers can use it to free the
culprits of intentional unlawful acts.

Relevant Case Law:

Jai Lal v. Delhi Administration23:
Here, the appellant killed a small girl with a knife and even stabbed two other
people, was convicted under Section 302 of the Indian Penal Code. It was
pleaded by the accused that he was suffering from insanity within the ambit of
Section 84, IPC.

It was observed that the accused, after being arrested gave normal and
intelligent statements to the investigating officers. Nothing abnormal was
noticed in his behavior. Considering all these findings, the Supreme Court held
that the appellant was not insane at the time of the commission of the act and
was well-aware of the consequences of his acts. He was held guilty for murder
under Section 302, IPC.

MISCONCEPTIONS ABOUT THE INSANITY DEFENCE

MYTH#1: The Insanity Defense Is Overused
All of the strongest analysis has been consistently consistent: the general public
and the judiciary (especially lawyers) are overly balanced and overly common
in both the frequency and success rate of the insane application, an error no
23
1969 AIR 15 1969 SCR (1) 140 ACT
doubt supported by bizarre media exposure, distortion, and. errors in identifying
mentally ill people who have been charged. Crazy self-defense is used in about
1 percent of all criminal cases, and it is effective about one-fourth of the time.

MYTH#2: Use of The Insanity Defense Is Limited to Murder Cases

In one area where data was carefully analyzed, contrary to expectations, less
than one-third of successful psychiatric claims lodged over an eight-year period
were reached in cases involving the victim's death. In addition, people who
oppose insanity in murder cases are less likely to be diagnosed with NGRI than
those charged with other crimes.

MYTH#3: There Is No Risk to The Defendant Who Pleads Insanity

Defendants who argued for the defense of insanity during the trial, and were
eventually found guilty of their crimes, drew longer sentences than the
defendants who tried the same charges who did not guarantee the defense of
madness. Unsuccessful NGRI opponents were jailed for 22 percent longer than
people who did not file their application (Braff, Arvantes, Steadman, Arrested
Patterns Suspected Successful and Unsuccessful, Criminal 21. 439, 445 (1983)).
The same rate is found when murder cases are considered only.

MYTH#4: Criminal Defendants Who Plead Insanity Are Usually Faking

This is the oldest myth of madness, and has not violated American law since the
middle of the nineteenth century. Of the 141 people who received NGRI in one
place over a period of eight years, there was no dispute that 115 were people
with schizophrenia (involving 38 out of 46 cases involving the victim's death),
and in only three cases where the diagnostic doctor did not want or could not
specify the type of the patient's mental illness. Also, most studies show that 80-
84 percent (see Perlin, Jurisprudrence, p. 111 n.178), according to the study, of
the NGRI defendants have a significant history of previous hospitalizations.

LANDMARK CASES RELATED TO INSANITY DEFENCE

In Ashirudeen Ahamed v State24, the court's approach was aimed at
developing a new insanity test.It was decided that in order to be eligible for
protection under Section 84 of the IPC,One of the following must be proven by
the accused that: (1) he had no knowledge of the nature of the action charged,

24
1949 CriLJ 255.
(2) he had no knowledge that the act was illegal, or (3) he had no knowledge
that the act was unlawful.
In Dayabhai Chhagan bhai Thakkar v. State of Gujarat25 observed that the
time period during which the crime was committed is crucial in evaluating the
accused's mental state. Only the circumstances leading up to, during, and after
the offence can decide if the suspect was in a mental condition that qualified
him for the protection of section 84, IPC.
In Bapu @ Gajraj Singh v. State of Rajasthan19, the Supreme Court defined
which ailments are covered by this defence and which are not. This defence
does not apply to strange, egotistical, or irascible behaviour, or any illness that
diminishes the intellect or affects one's emotions or willpower, according to the
law. It's likewise insufficient if the accused has recurrent spells of lunacy or
epilepsy but otherwise acts normally.
The Supreme Court in Hari Singh Gond v. State of Madhya Pradesh26 ,
observed that in circumstances of claimed insanity, Section 84 of the IPC
establishes the legal test of responsibility. The courts, “on the other hand, have
largely equated this term with insanity. However, there is no clear meaning of
the term "insanity." It is a phrase that is used to characterize various levels of
mental illness. As a result, a mentally ill individual is not automatically exempt
from criminal liability. It's important to distinguish between legal and medical
insanity.” The court is only focused in legal insanity, not medical insanity.
The Supreme Court in Surendra Mishra v. State of Jharkhand27 held that the
suspect must establish “legal insanity”, not “medical insanity”, so as to be
exonerated from criminal culpability under Section 84.
The Supreme Court in Shrikant Anandrao bhosale v. State of
Maharashtra28, held that “when a plea of legal insanity is set up, the crucial
point of time for ascertaining the state of mind of the accused is the time when
the offence was committed. Whether the accused was in such a state of mind as
to be entitled to the benefit of section 84 of the IPC can only be established
from the circumstances which preceded, attended and followed the crime.
Undoubtedly, the state of mind of the accused at the time of commission of the
offence is to be proved so as to get the benefit of the exception.”

25
AIR 1964 SC 1563
26
(2008) 16 SCC 109
27
AIR 2011 SC 627
28
(2002)7 SCC 748
 In Lakshmi v. State29 , it was observed that “Section 84 lays down is not that
the accused claiming protection under it should not know an act to be right or
wrong, but that the accused should be "incapable" of knowing whether the act
done by him is right or wrong. The capacity to know a thing is quite different
from what a person knows. The former is a potentiality, the latter is the result of
it. If a person possesses the former, he cannot be protected in law, whatever,
might be the result of his potentiality. In other words, what is protected is an
inherent or organic incapacity, and not a wrong or erroneous belief which might
be the result of a perverted potentiality.”

BURDEN OF PROOF
In a situation where insanity is pleaded as a defence to a criminal charge, the
accused has the burden of evidence, according to section 105 of the Indian
Evidence Act, 1872.The burden of proof in criminal proceedings is always on
the prosecution and never transfers, according to a well-established precept of
criminal law.This is derived from the basic concept that the accused is
presumed innocent until the prosecution proves otherwise, and that the accused
is given the benefit of the doubt.If the accused's insanity defence is to be
accepted, he must show not only that he was mad in general, but also that he
was mad at the time the offence was committed, according to Section 84.
In State of MP v. Ahamadullah30, the court stated that “the general
presumption in law is that every person is sane during the commission of the
offence. The prosecution is not required to contest or prove sanity of the
accused. The burden of proving the existence of circumstances bringing the case
within the purview of Section 84, therefore lies on the accused.” The accused's
only responsibility is to prove the existence of insanity at the time of the
offence. It is sufficient for him to demonstrate, as in a civil action, that the
majority of evidence is in his favour.

29
e, AIR 1963 All 534
30
AIR 1921 SC 998
LAW OF INSANITY IN INDIA
The Indian law relating to insanity has been codified in the IPC, section 8431
contained also the general exceptions.32 Section 84 of the Indian penal Code,
1860 mentions the legal test of responsibility in case of alleged unsoundness of
mind. It is by this test as distinguished from a medical test that the criminality or
the mens rea of the actus reus is to be determined.This section in substance is
the same as the M'Naghten Rules which are still the authoritative statment of
law as to criminal responsibility in spite of the passage of time.
[A.] SECTION 84 OF IPC AND M’NAGHTEN PRINCIPLE
IPC section 84 deals with the law of insanity on the subject. This provision is
made from the M’Naghten rules of England. In the draft penal code, Lord
Macaulay suggested two section (66 and 67), one stating that ‘nothing is an
offence which is done by a person in a state of idiocy’ and the other stating that
‘nothing is an offence which a person does in consequence of being mad or
delirious at the time of doing it’ to deal with insanity.33 The Law
Commissioners in replacing these two provisions by IPC, section 84 have
adopted a brief and succinct form of the Mc’Naghten rules. It has been drafted
in the light of the replies to the second and third questions, which is generally
known as M’Naghten rules. But IPC, section 84 uses a more comprehensible
term ‘unsoundness of mind’ instead of insanity. Huda says the use of the word
‘unsoundness of mind’ instead of insanity has the advantage of doing away with
the necessity of defining insanity and of artificially bringing within its scope
different conditions and affliction of mind which ordinarily do not come within
its meaning but which nonetheless stand on the same footing in regard to the
exemptions from criminal liability.

[B.] UNSOUNDNESS OF MIND

The Code does not define unsoundness of mind.34 But to exempt a man from
criminal liability unsoundness of mind must reach that degree such that it
materially impairs the cognitive faculties of the mind that can form a ground of
exemption from criminal responsibility. A distinction must be drawn between

31
Indian Penal Code, § 84: ‘Acts 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
32
State of M.P. v. Digvijay Singh, AIR 1981 SC 1970.
33
K.N. PILLAI, CHANDRASEKHARAN, GENERAL PRINCIPLES OF CRIMINAL LAW, 267
34
KaderHasyer Shah, (1896) 23 Cal 604,607
insanity affecting the cognitive faculties of a man and that affecting the will or
emotions. It is only the first that is within the purview of the section.96
In Bikari v. State of U.P.,35 it was held that where evidence of deliberate or
premeditated actions are found, destruction of cognitive faculties cannot be
inferred. Such unsoundness however cannot be inferred from mere lack of
motive or the nature of the defendant's preceding or subsequent actions. Such
was the dictum of the Supreme Court in Sheralli Walli Mohammed v. State of
Maharashtra36
In Lakshmi v. State,37 the meaning as to unsoundness of mind was cleared up.
It was held that what section 84 lays down is that the accused claiming
protection under it should not know an act to be right or wrong but that the
accused should be "incapable" of knowing whether the act done by him is right
or wrong. The former is a potentiality; the latter is the result of it. If the person
possesses the former, he cannot be protected in law, whatever might be the
result of his potentiality.

[C.] THE LAW COMMISSION REPORT SUMMARY

After much deliberation it was decided that the provisions in the criminal
justice system dealing with the insanity defense need no alteration and the same
were left untouched.38 However. This decision of the Law Commission has
come under fire since the M'Naghten Rule (which is based the Indian insanity
defense) has come under increasing attack in most common law countries.101
In fact to remedy it’s in adequacies, a vast number of legislations and new
theories have been formulated. In India however no such innovations have been
introduced and we continue to live with this much criticized system.102 The
Indian Law on insanity is based on the rules laid down in the M’Naghten case.39
However, the M’Naghten rules have become obsolete and are not proper and
suitable in the modern era.

35
AIR 1961 SC 1
36
AIR 1972 SC 2443
37
AIR 1963 ALL 534.
38
Shivraj Singh v. State of M.P., 1975 Cr LJ 1458
39
3 Bhan Singh v. State of M.P., 1990 Cr LJ 1861 (MP)
LAW OF INSANITY IN OTHER CRIMINAL CODES: AN
OVERVIEW
The Criminal Codes of many countries provide for a broader scope for the
defence of insanity.
[A.] INSANITY LAW IN USA
The United States' courts expanded upon the M'Naghten Rule by exempting
from criminal liability those who acted under "irresistible impulse."40 This test
focused on exempting spur-of-the-moment reactions from criminal
responsibility.106 Thus, courts, following this rule, would not excuse crimes
committed after prolonged contemplation.
Parsons v. State41, a much-noted early case, exemplified this proposition. In
Parsons, a wife and daughter were accused of killing their husband/father by
fatally shooting him. The two defendants were tried jointly and both pled
insanity. At the trial level, the jury found the defendants guilty of murder with
malice aforethought.
Another development with limited application in the law of the insanity plea in
the United States was the so called "product" test.110 According to this test, the
defendant would not be criminally responsible if his unlawful act was the
product or result of a mental disease or defect.

[B.] AUSTRALIAN CAPITAL TERRITORY

Pursuant to the Crimes Act 1900, section 428(1):42 An accused is entitled to be
acquitted of an indictable offence on the grounds of mental illness if it is
established on the balance of probabilities that, at the time of the alleged
offence, the accused was, as a result of mental dysfunction -  Incapable of
knowing what he or she was doing; or  Incapable of understanding that what
he or she was doing was wrong.
[C.] NEW SOUTH WALES
In New South Wales, §38 of the Mental Health (Criminal Procedure) Act 1990
states:43 If, in an indictment or information, an act or omission is charged

40
MICHAEL L. PERLIN, THE JURISPRUDENCE OF THE INSANITY DEFENCE 84 (1994)
41
2 So. 854 (Ala. 1887).
42
5 Diamond, Criminal Responsibility of the Mentally Ill, 14 STAN. L. REV. 59, 61-62 (1961)
43
G. P. Fletcher, "Two Kinds of Legal Rules: a Comparative Study of Burden-of-Persuasion Practices in Criminal
Cases" 77 Yale L.J. 880, 899-901(1968).
against a person as an offence and it is given in evidence on the trial of the
person for the offence that the person was mentally ill, so as not to be
responsible, according to law, for his or her action at the time when the act was
done or omission made, then, if it appears to the jury before which the person is
tried that the person did the act or made the omission charged, but was mentally
ill at the time when the person did or made the same, the jury must return a
special verdict that the accused person is not guilty by reason of mental illness.
It is noted that this test invokes the common law; New South Wales is the only
Australian jurisdiction to do so in those terms
[D]TASMANIAN CRIMINAL CODE
Section 16 says that an accused may not be punished if he may not understand
the nature of the act or that it was against law. They may also not be punished if
they committed the act under an ‘irresistible impulse’.
[E.]PENAL CODE OF FRANCE
Article 64 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’.
[F.] SWISS PENAL CODE
Section 10 states 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’. The American Law
Institute suggested that ‘a person is not responsible for criminal conduct if at the
time of such conduct as a result of mental disease or defect he lacks the
substantial capacity either to appreciate the criminality of his conduct or to
confirm his conduct to the requirements of law’

THE DRAWBACKS OF THE INDIAN LEGAL SYSTEM

The data revealed that lower court findings were based on documentation proof
of mental illness previous to the crime and the opinion of a physician. Murder
was the most prevalent crime (as murder carries a death penalty). The victim's
wife was the most prevalent relationship, followed by a first-degree relative.
Schizophrenia was the most commonly diagnosed mental illness. Women made
up just 3% of the total number of insanity pleas. Another noteworthy statistic is
that women had a higher success rate in insanity pleas. As a result of these
factors, some people believe that the law has a role in imposing sexual
stereotypes.
The study drew attention to a few key difficulties. They came upon some major
challenges. The need of recording the different treatment processes by clinicians
was obvious. However, in a poor nation like India, where mental health
disorders are stigmatised, this is not the case. Due to a paucity of psychiatric
institutions and the employment of unscientific religious rituals, as well as the
usage of Ayurveda to treat mental diseases, documental proof is only available
to the upper crust.
There is a dependence on psychiatric opinion, but no formal system for
obtaining and analysing psychiatric data or opportunity for psychiatric
examination has been established.The study also found that for people who
sought psychiatric assistance before to committing a crime, the interval between
the act and the previous psychiatric consultation ranged from one day to six
months (the average being 275.2 days). The psychiatrist was new to the accused
in the majority of cases (41 of 67), indicating that the majority of the accused
had never seen a doctor before. In the case of insanity pleas in India, the higher
court was much less likely to overturn the lower court's decision in the event of
an appeal, according to the study.
Not only Indian psychiatrists see the urgent need for change in the field of
forensic psychiatryIn the Bolabhai hirabhai case44, the Gujarat high court
emphasised the need of forensic psychiatry in the administration of justice. It
also stated that forensic psychiatry is still underutilised in the criminal justice
system. The court noted that the single part of criminal culpability that emerges
from mental illness has piqued the court's curiosity.
According to the expert view, the court should consider whether a person in
this situation could have done the same crime if he had emotional equilibrium,
average intellect, and suitable perception. It should also look at whether his
mental condition was strong enough to counteract the aforementioned
causes.The high court also praised Dr. Agarwal, who testified as a defence
witness and provided an expert opinion. The doctor has 18 years of psychiatric
experience, as well as clinical experience. It also chastised the trial court for
failing to give the doctor's view the weight it deserved. The inadequacies of the
Mental Health Act of 1987 were also highlighted by the court.

44
(2000) 3 GLR 242
CRITICIS OF M’NAGHTEN PRINCIPLE
The M'Naghten Rule has been chastised for a number of reasons. The following
are some of the most important reasons:
1. It was established that if a person is unable to distinguish between good and
wrong, he is mad. However, there are also medical circumstances in which a
person knows 'what is right' but feels compelled to do evil. When a person can't
stop themselves from doing something bad, it's known as 'irresistible impulse.'
People suffering from manias and paraphilias, for example.
2. The regulation has been criticised for giving the defendant an easy way out.If
somebody suffers from a serious mental illness, he can easily avoid criminal
accountability, regardless of how much this illness assisted in the commission
of the crime. There have been certain instances when the legal definition of
insanity differs with the medical criterion for insanity.
3. It is also criticised since the M'Naghten rule only provides a legal definition
of insanity and does not provide a medical one. The guideline does not define or
define phrases such as temporary or permanent insanity. There might be a
condition that is just transient and manifests itself at different times during a
person's life.If somebody suffers from a serious mental illness, he can easily
avoid criminal accountability, regardless of how much this illness assisted in the
commission of the crime. There have been certain instances when the legal
definition of insanity differs with the medical criterion for insanity.
4. It is also criticised since the M'Naghten rule only provides a legal definition
of insanity and does not provide a medical one. The guideline does not define or
define phrases such as temporary or permanent insanity.There might be a
condition that is just temporary and shows up at different points during a
person's life

REFORMS
In today's legal system, a thorough examination of the patient's medical history,
prior medical history, family and personal history, premorbid personality, and
drug misuse is essential. More significantly, a thorough investigation of his
cognition, behaviour, emotions, and perception before, during, and after the
occurrence should be done. It is necessary to determine the accused's level of
legal understanding and the nature of the offence committed. If necessary, a
cognitive functioning exam should be conducted using open-ended questions
rather than leading questions. Psychiatry's importance grows as a result of
this.However, there are no established degree programmes or institutes in
forensic psychiatry in India at the moment. As a result, there is a pressing need
to develop educational institutes of this type to suit the needs of the times we
live in. Judicial officers, police officers, correctional officers, and human rights
workers should all get training or basic education in forensic psychiatric
concepts.
Despite the fact that India's new mental healthcare act of 2017 aimed at
considerable reforms in the domain of criminally insane rehabilitation (which
had decriminalised suicide). However, the concerns surrounding the insanity
plea persist at both the national and international levels. It is well acknowledged
that nations with an inquisitorial criminal justice system do better than countries
with an adversarial criminal justice system when it comes to the insanity plea.
In Scandinavian nations, the plea is still handled more successfully by a board
made up of people with judicial, psychiatric, and human rights backgrounds.
The human condition is far from simple, especially when it comes to legislation;
the human species still has no understanding of its own mind. The only way to
ensure that mankind's oldest defence argument has a brighter future is to
combine scientific and legal advances.

A CHANGE IN THE LEGAL TEST

What we require is change in the way of thinking, instead of focusing our
approach towards defining insanity on the basis of M'naghten Rules, we should
focus on other approaches as well, which includes:
a) The Model Penal Code test
The Model Penal Code Test originated in the late twentieth century. This
Test was made to be much more flexible than other tests available at the
point of time. This test presents that there should be two conditions either
of which should be fulfilled in order for the test to prove that the
individual was insane at the time of the crime committed, these two
conditions are-
● That the individual is unable to grasp the consequences of his actions
● In the present Condition his behaviour cannot be corrected so as to not
cause harm to the society in the foreseeable future.
The tests check for any mental disorder which the person is suffering
from and how his mental disorder caused this individual to commit the
crime that he did.
 b) Irresistible Impulse Test
The Irresistible Impulse Test states that the individual who is using
insanity as defence should not be held liable even though he was fully
aware of his actions only because he was unable to control his
movements and since he did not control his action this would provide for
absence of mens rea. Since, it was created from the Criticisms of
M'Naghten Rules It states that McNaughton rule does not factor in the
cases where the individual is aware of his actions but cannot control his
impulses due to mental trauma or disorder or any other reason.
c) Durham Test for Insanity
This test also brings to light that the individual should not be held liable
if he is suffering from mental illness. Since, it means that there is the
absence of ill intention to do harm. Hence, any action done by this person
is not a crime since there is only action but no intention. This Test is only
applicable in New Hampshire

BENEFICIAL EFFECTS OF INSANITY DEFENCE

1. For the mentally challenged accused, the insanity defence is a lifesaver since
their thinking is like that of a toddler who doesn't understand what they're doing
and isn't aware of the implications of their actions.
2. Because an insane person who confessed to a crime was unable to appreciate
the seriousness or nature of the offence, death penalty is not justifiable.
3. An activity against the legislation is an offense, and if an offense is done, the
suspect is viewed as a lower human being. Once the offence is established,
defence is taken. This defence gives relief to the mentally deficient individual.

ADVERSE EFFECTS OF INSANITY DEFENCE

1. The insanity defence has really been frequently misapplied, with the guilty
being released on the grounds of mental illness in a variety of situations and
circumstances, which devalues the concept of law. Many countries, including
Germany, Argentina, Thailand, and the majority of the United Kingdom, have
eliminated this defence due to widespread abuse .
 2. Because the accused bears the burden of demonstrating insanity as a defence,
proving and availing this defence is a difficult effort. While showing medical
insanity is simple, legally establishing insanity is a complex effort that the
accused must prove with tangible proof.
3. To avoid criminal liability, all of the essential factors must be satisfied under
Section 84, but it is impossible to satisfy all of the criteria, and as a result, most
insanity defence cases result in the accused being charged with criminal
responsibility and penalised.
4. As a consequence, the insanity defence is frequently misapplied because it is
hard to determine if a person's thoughts was in a “sound or unsound” state of
mind at the time the crime has been committed.

SURVEY RESULTS
With the purpose to achieve the objectives of this research a survey was
conducted through a google form questionnaire where a large number of people
participated from different age, gender, and professions from which we could
gather the following information :

78.3% of the total population of the sample taken had a clarity about the topic
and knew about the plea of insanity on the other hand 8.7% of the population
thinks that the accused’s mental state before the time the offence was committed
or the accused’s mental state at the time defendant was arrested is known as the
defence of insanity and 4.3% believes that the defence of insanity concerns with
the accused’s family history of mental conditions.

A major part of the sample did not agree or disagree to the question that the
insanity defence is tactic which is employed in criminal law in India to absolve
a suspect of crime in percentage they are of 43.5 % and 21.7 % of the
population agreed and 34.8% strongly agreed for the same.

This question meant to check the awareness among the society and the major
part of the society which in in percentage is 60.9% is aware about the difference
between the medical and legal insanity and 30.4% is not aware about the same.
More than half of the population of the sample taken strongly agrees that there
are very high chances that the defence of insanity can be very well abused as it
is a strong weapon to escape the charges of an offence which in percentage is
of 56.5% and 39.1 % also agrees for the same but 4.3% of the population tried
to remain neutral on this issue.

52.2 % of the population strongly agrees that defence lawyers can use this plea
of insanity to free the culprits of intentional unlawful acts and in retaliation
21.7% disagreed for the same and 17.4% agrees and 8.7% chose to remain
neutral on this matter.
Major part of the population of the sample thinks that it is fair to put burden of
evidence on the accused where insanity is pleaded as a defence to a criminal
charge which in percentage is of 47.8% , 34.8% chose to remain neutral and
17.4% is against it which believes burden of proof should also rely of on the
defendant not always on the accused.

56.5% of the population believes that a poor nation like India where mental
health disorders are stigmatized the documental proof is only available to upper
crust or class of the society and 26.1% of the population agrees for the same and
17.4% chose to remain neutral.
66.2% of the population strongly agreed to the point that a formal system should
be established for a fair trial only an opinion of psychiatrist is not enough and
17$% agrees for the same and 13% chose to remain neutral and in retaliation
4.3% disagreed and believes psychiatric opinion is enough no need of any
formal system to be established.

CONCLUSION
An inference drawn from the research is that Section 84, IPC incorporates
M’Naughton Rules. The Section deals with insanity, which is a defence that
covers all types of incapacity, whether “temporary or permanent”, “natural or
supervening”, “arising from disease or existing from birth”, and is based solely
on the suspect's behaviour, which is the sole criterion for assessing criminal
guilt. 26It is difficult to detect a person's mental state when they are committing
a crime, and it is therefore difficult to establish their mental condition. Also, it is
extremely difficult for an insane person to prove his defence. Simultaneously
sane person also using this plea to get away from punishment. The situation
becomes barrier for the law to serve its main purpose thereby turning it into a
loophole. Another thing that make this law a loophole is that the court have to
determine mens rea in this case, which in itself is very complicated. It is not
appropriate to use it every time. The plea of insanity should only and only be
raised in genuine cases. Though it is on the discretion of the court at the end but
there must be fair use of the laws made for the benefit of the general public. It is
fair to conclude that the law of insanity has lost its initial vitality and has now
become a mechanism for criminals to avoid legal consequences.In view of
advances in medical sciences, particularly in the field of psychiatry, Indian
courts have often urged for a more progressive approach in the application of
the Penal Code's definition of "unsoundness of mind”.

CRITICAL ANALYSIS
The Indian Law on insanity is based on the rules laid down in the M’Naghten
case. However, the M’Naghten rules have become obsolete and are not proper
and suitable in the modern era. The M’Naghten rule is based on the entirely
obsolete and misleading conception of nature of insanity, since insanity does not
only affect the cognitive faculties but affects the whole personality of the person
including both the will and the emotions. The present definition only looks at
the cognitive and moral aspects of the defendant's actions but ignores the
irresistible impulse that may be forcing him to commit that act. An insane
person may often know the nature and quality of his act and that law forbids it
but yet commit it as a result of the mental disease.
The Law Commission of India in its 42nd report after considering the
desirability of introducing the test of diminished responsibility under IPC,
section 84 gave its opinion in the negative due to the complicated medico-legal
issue it would introduce in trial. It is submitted that the Law Commission’s view
needs modification since it is not in conformity with the latest scientific and
technological advances made in this direction. There are three compartments of
the mind controlling cognition, emotion and will. IPC, section 84 only exempts
one whose cognitive faculties are affected.
The provision is regarded as too narrow, and makes no provision for a case
where one’s emotion and the will are so affected as to render the control of the
cognitive faculties ineffectual. The Courts must also adopt a broader view of the
Insanity and introduce the concept of diminished responsibility.
The Indian Government may also look at the provisions of the other countries
relating to insanity. Swiss Penal Code, section 10 states 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’. This provision is much broader and is better suited for the defence
of insanity.
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w%20is%20based%20upon,act%20is%20prohibited%20by%20
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 Parthasarathy Ramamurthy & Vijay Chatoth, How does India
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 Black’s Law Dictionary, 8th Ed., p.810.
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of the perfect defense”, Available at:
https://www.bu.edu/law/journals-
archive/bulr/documents/covey.pdf (Visited on May 28, 2021).
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 https://www.lawtreeclub.com/the-insanity-defense-loophole-for-
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