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Insanity as a general exception: A Loopholes for Criminals

Author: Santosh Salora, pursuing LLB from Campus Law Centre, Faculty of Law, University of Delhi.


According to the ancient Indian law of Karma, when man does an act which is a violation of his/her own duty, s/he needs to suffer for the misdeeds without any exception, either in the present life or in any subsequent life. This is a theory of fate, Karma, and regeneration that results in the formation of absolute liability. It was not clear that an insane person was free from his/her criminal act according to the available literature. In the recent times of codifications, the responsibility of the law is to punish the persons who commit crimes in such a way that they do not punish people who are already punished by nature. The plea of insanity or unsoundness of mind is brought in by defense to save his/her client from any kind of punishment. Insanity is a troublesome part of the law of crime, it is considered a war between legal profession and a medical profession. As there is a difference between legal insanity and mental insanity, the person is exempted from criminal liability only when legal test of insanity is fulfilled. According to the medical point of view, a man is insane at the time of committing offence as he was not in a sound and a normal condition and he requires treatment. According to the legal point of view, a man is considered a sane person if he is capable enough to know what is right or what is wrong and unsoundness of mind is relevant at the time of commission of the offence.A judge cannot himself judge the conditions for mental ill people, so s/he should take suggestions from the doctor, in order to perfectly satisfy the legal insanity.


Development in the jurisprudence of Law of Insanity


The law of insanity has already been a part of mam made laws since the ancient Greek and Roman Times. The very first provision related to the defense of insanity was found in an English Legal treaty, in which if a lunatic person kills someone because of his/her, lunacy s/he cannot be liable for that act. With the further development in the jurisprudence of the law of insanity the British Courts came up with a test which laid down the foundation of the law of insanity and the test is called as “wild beast test”, in which a person is not liable for his/her act if s/he has understanding of an infant or a wild beast. After this, various test were used

· Insane Delusion Test (to check whether a person is insane or not)

· Good and Evil Test (to check while committing the crime person has the ability to difference between good or evil)


These three tests laid the foundation of the leading English case R v. McNaughton (1843) 8 Eng. Rep. 718, 722. In this case, the court ordered for the acquittal of the accused as his state of mind was not as of a sane person and ordered to send him to Mental Asylum. Due to the adverse public reaction, House of Lords discussed on this matter and laid down five proposition and they are:

· It is presumed that an accused is sane until the contrary is proven.

· If an insane person knows that what s/he is doing at the time of commission of offence, would be liable for the punishment.

· To establish the defense, accused has to prove that s/he was not in a position to know the nature and consequences of the act due to insanity.

· Accused delusions should be real.

· The jury is responsible for deciding whether the person is insane or not.


These propositions emphasized on the understanding of an accused that has done something wrong. Further this there weremany other tests such as Irresistible Impulse test (unable to control impulses because of mental disease), The Durham Rule (mental defect resulted in a criminal act), The Model Penal Code test (unable to understand the criminality of act or to act within confines of law) and further more to come.


Law of Insanity in Indian Criminal Law


The law of insanity fulfills two objectives: one, to have a check on criminals and two, to save the society from mentally ill people. In Indian law, Section 84 of The Indian Penal Code,1860 deals with the defense of the insanity, which is influenced by the McNaughton’s Test.The section is basically divided into two major categories:

· Unsoundness of mind (conscience of bearing of his/her act)

· Person is incapable of knowing the nature of act, or his act was wrong, or contrary to law (conscience of his relation to himself)


According to both categories, the insanity is of legal insanity, which means once proven the accused is free from the legal consequences. There are various laws such as The Indian Lunacy Act, 1912, Mental Illness Act, 2013 and many more which defines the mental illness, unsoundness of mind and many other diseases which make the person incapable of managing its own affairs and which also tell how to deal with such kind of people.


Burden of Proof


The Indian Penal Code, 1860 does not deal with the proof of insanity; it falls within the ambit of Indian Evidence Act, 1972. There is a presumption of sanity until the contrary is proved. According to the Section 105 of the evidence act, the burden is on the accused whenever there is plea of defense is raised. The accused does not have to introduce further evidence; it is evident from the evidence on record either produced by defense or prosecution. With the help of evidence the court need to decide whether accused comes under the exception or not. The Supreme Court in Anandrao Bhosale v. State of Maharashtra (2002) 1 SCC 748 held that the unsoundness need to be proved at the time when the offence is actually committed and the burden of proof lies on the party who took the defense of Section 84. The burden is only of preponderance of probabilities as held by the Supreme Court in T.N. Lakshmaiah v. State of Karnataka (2002) 1 SCC 219.

Defense being misused


It is a common tendency that whenever a measure is taken for someone, that measure is being misused by others. The same is the case with the law of insanity, as many sane persons have taken a defense on insanity and successes in escaping from the legal consequences after committing a crime. The defense of the insanity is considered as an excuse rather than justification. For the same reason, countries like Germany, Argentina, Thailand and many countries in England have abolished these kinds of defenses, as the violent criminals are acquitted for the sake of insanity which clearly shows that the law has lost its significance. It is very difficult to prove the essential ingredients of Section 84 of IPC as they require very concrete evidences to prove the legal insanity. To prove a mental insanity is much easier task than to prove legal insanity. For this reason, the legitimate cases of insanity are punished and charged with the offences instead of violent criminals. It is very difficult to examine the mental state of mind of any person at the time of commission of offence, the judge need to use its own prudence by applying his own mind by looking at the submitted evidence.


Conclusion and Suggestions


The insanity as a defense has become a loophole for many criminals as it has become a very popular defense to escape from any punishment even if the offence is committed. It is very difficult to know or to prove the mental state of mind of any criminal at the time of commission of any offence. These cases become more complicated as the accused himself confess his/her crime but at the same moment says that s/he have no idea that when they have done and also they do not have any motive, the only thing which the defense need to prove. Because of all this, the law of insanity has lost its motive for which it is created and is being used as a tool by criminals just to evade from criminal liability and any legal consequences. Courts are concerned for the protection of society from these criminals, while mental health professionals are concerned for the treatment of these people, they both should work together to give justice to these people. A straightforward law and proper tests for these people are the remedies available with us to cope up with these lacunas in law. Reforms are much required so that we can have clarity between who is a violent criminal and who are actually insane criminals. The initial step could be taken from the side of the states by making a much stricter law on this so that society can be protected from these violent criminals.


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