Introduction to Insanity as a defence
1. INTRODUCTION
Man
in early society was a nomad by nature. He used to roam from one place to
another in search of food and for survival. As the time passed, man became food
producer. The idea of protecting crops made him settle at one place.
The
history of crime and punishments is as old as our civilization itself. In
primitive societies, initially there was no distinction between civil and
criminal wrongs as it exists today in our criminal justice system. All social
actions which were morally or socially disapproved by the society were termed
as wrongs. Later on, with passage of time, a line of distinction was drawn
between civil wrongs and criminal wrongs. The wrongs which were of less serious
nature were termed as civil wrongs and the wrongs of more serious nature and
which couldn’t be compensated in terms of money were termed as criminal wrongs.
Crime
is ever existent in the society. A crime less society is a myth. As rightly
pointed out by Professor Lord Frank in his work “New Horizons of Criminology”
(Ed, 1)
“Crime
is eternal, it can’t be abolished
Except
in a non-existent Utopia”
However,
the crime and its punishments have changed their forms over a period of time.
To curb the menace of crime, certain set of rules and regulations were formed
over a period of time which aimed at:
Firstly,
creating a deterrence in the mind of people so as to prevent further commission
of crime and Secondly, to punish those who didn’t abide by those rules and
regulations. Based on these rules and regulations only, certain statutes were
framed over a period of time and these rules and regulations were given state
recognition by incorporating them in the statute books with some variations.
In
India, the law relating to crime and its punishment is the Indian Penal Code,
1860 (IPC) which defines crime and its various possible shades along with the
prescribed punishments for the same. The penal law of India is a legacy of
Britishers for India. It was the 1st law commission of India
constituted under the chairmanship of Lord T.B. Macaulay in 1834 who drafted
the Penal Code of India.
1.1 MENS REA: A MANDATE
FOR CRIMINAL LIABILITY
In
ancient times, the legal system regulating the provisions relating to crime and
its punishment was not that rational and developed. Earlier, even animals and
inanimate objects were also the subjects of criminal law along with human
beings.
In
Barring Gould’s “Curiosity of Olden Times”, there is mention of several
instances where animals, trees, branches, carts etc were subjected to
punishments for their acts which caused any injury to other person.
Over
a period of time, under Modern Hindu Criminal Jurisprudence, it was felt that
for commission of a particular crime some amount of guilty intention on the
part of the offender must be present. It was also emphasized that if a person,
object or animal is incapable of understanding the consequences of its act or
is incapable of forming any guilty intention then it should not be punished for
that act. This ultimately led to the exclusion of animals and inanimate objects
from the ambit of the criminal law. At present, only human being is the subject
matter of criminal law.
As
a general principle of criminal law, in order to make a person liable for any
offence, it is essential that his overt act (Actus Reus) must be accompanied by
some guilty intention i.e. the Mens Rea; however some exceptional situations
may be there. Thus, mens rea plays an extremely important role in determining
the liability of a person for commission of any offence.
Mens
rea is a technical term, generally taken to mean some blameworthy mental
condition, the absence of which on any particular occasion negatives the
condition of crime. However, the requisite guilty state of mind varies from
crime to crime. What is an evil intent for one kind of offence may not be so
for another kind.
The
underlying principle of the doctrine of mens rea is expressed in two Latin
maxims namely: Firstly, Actus non facit reum nisi mens sit rea
which implies that the act does not make one person guilty until and unless the
intentions were so. Secondly, Actus me invito factus non est mens actus
which implies that an act against my will is not my act at all. The underlying
objective of law is manifest in these maxims when they stipulate that mens rea
or guilty intention is the sin qua non of a criminal act and is an essential
element of crime. The fact that mens rea has been made central to criminal
liability, also includes that every person has the capacity to choose between
right and wrong. Once a person makes a choice, he has to bear the negative or
positive consequences of the same, whatsoever may be the case.
Our
criminal justice system has a twofold role to play in society. On one hand, it
has to assure justice to the victim and on the other hand it has to ensure that
no serious hardship is caused to the accused at the hands of law. Various
provisions enshrined under different statutes aims at two basic duties of the
criminal justice system: Firstly, to ensure peace and harmony in the society,
strict abidance of laws by every unit of the society and in case of violation
of law punishing the evil contents for the same. Secondly, to rehabilitate and
restore the victims of those violations back to their earlier positions in
which they were before the commission of the crime. At this time, the judiciary
has an important role to play. It is the judiciary which is to give a
harmonious construction to the statutes enacted so that the object of one
statute does not get defeated while preserving the object of the other statute.
Based
on this notion, the authors of the Code included the chapter of ‘General
Exceptions’ so that while attempting to provide restorative justice to the
victim of crime Courts do not forget to safeguard the interest of the accused
by giving him a fair and equal chance to prove his innocence and escape
unreasonable or non justified punishment.
1.2 GENERAL EXCEPTIONS
UNDER INDIAN PENAL CODE, 1860
A
separate Chapter titled as “General Exceptions” (Section 76-Section 106)[1]
has been devoted to various types of Defences which one can avail in order to
prove his innocence and escape the infliction of unnecessary punishment.
The
title “General Exceptions” is used to convey that these exceptions are
available to the accused in case of any offence in general. The object of
clustering all the exceptions in a single chapter as outlined by the Law
Commissioners who drafted the code is to obviate the necessity of repeating in
every penal clause a considerable number of limitations.[2]
Further,
Section 6 of IPC[3]
mandates a court to read every definition of an offence or penal provision
including the illustrations appended thereto subject to General Exceptions. It
also conveys that the IPC presumes the absence of any extenuating circumstances
that have been incorporated in chapter IV of the Code. In order to understand
or construe any provision of the Code, it is, therefore, not sufficient to read
the concerned section alone. Every provision under the IPC has to be read along
with the chapter on ‘General Exceptions’ before coming to any conclusion on the
liability or culpability of a person accused of a crime.
In
the above mentioned chapter certain acts which otherwise would constitute an
offence, cease to be so under certain wanting circumstances. The chapter on
general exceptions enumerates the circumstances that appear incompatible with
the existence of the required guilty mind or mens rea and thereby exempts the
doers from criminal liability.
Blackstone
observed, ‘to regard these defences as circumstances where the prosecution has
been unable to prove all the requirements of liability beyond reasonable doubt’[4]
These Defences under IPC can be broadly classified
into excusable defences and justifiable defences. Excusable defences are those
where law excuses certain class of persons due to want of mens rea even though
their act constitutes an offence. The excusable defences mainly include defence
of infancy and the defence of unsound mind. Section 84[5]
of IPC specifically deals with the Defence of Insanity under Indian Criminal
Law. Justifiable defences are available to the accused as they are justified in
committing the act constituting the offence.
These
defences can be listed as:
·
Defence of Mistake of
Fact (Section 76)[6]
·
Defence of Necessity
(Section 81) [7]
·
Defence of Accident or
Misfortune (Section 80)[8]
·
Defence of Involuntary
Intoxication (Section 85)[9]
·
Defence of Infancy
(Section 82)[10]
·
Defence of Compulsion(
Section 94)[11]
·
Defence of Act Done In
Private Defence etc.( Section 96)[12]
1.3 DEFENCE OF INSANITY
Generally,
in order to hold a person legally responsible for a crime, a criminal intent is
necessary and therefore capacity of the wrong-doer to form a criminal intent is
a relevant consideration in determining the criminal liability of that person.
A person may lack sufficient mental capacity to form
a criminal intent because of some defect of mental faculty. Insanity generally
implies defect in the mental faculties of a person caused by some disease or
defect of mind. It is generally said that no two brains have same bent of mind
like no two locks have the same key. Thus, the mental faculty, state of mind of
every person differs from another and thus, the disturbances in those mental
faculties could be of various types. Various shades of insanity have been
recognized by the IPC and much emphasis has been laid on the innocence or guilt
of a person acting under the fit of such disturbed mental faculty. The main
objective behind this defence is to avoid serious hardship to the one who is
actually mentally ill and not a criminal evil.
The defence of insanity is not of a new origin but
finds its mention in the ancient legal history of the world. However, this
defence was not that developed and codified in the sense it exists today in
different legal systems of the world. In India, the defence of insanity is
based on the famous M'Naghten rules which were framed by the Court in the famous
M’Naghten’s [13] case as a
reaction to the acquittal of Daniel
M'Naghten in 1843 on the charge of
murdering Edward Drummond, whom
M'Naghten had mistaken for British Prime Minister Robert Peel. These rules
regulate the law relating to the defence of insanity under the present Indian
Criminal Justice System.
This Defence
of Insanity finds a prominent place in the legal systems of The United States
of America as well as of United Kingdom but may have variations in relation to
this defence under Indian Legal System.
1.3.1 MEANING AND
DEFINITION OF INSANITY
In English, the word
"sane" derives from the Latin adjective ‘sanus’ meaning "healthy". Juvenal's
phrase ‘mens sana in corpore
sano’ is often translated to
mean a healthy mind in a healthy body.[14]
From this perspective, insanity can be considered as poor health of the mind,
not necessarily of the brain as an organ (although that can affect mental
health), but rather refers to defective function of mental processes such as
reasoning. Another Latin phrase related to our current concept of sanity is
"compos mentis" ("Sound of
mind"), and a euphemistic term for insanity is "non compos
mentis".
Insanity, craziness or madness is a spectrum of behaviors characterized
by certain abnormal mental or behavioral patterns. Insanity may manifest as
violations of societal
norms, including a person becoming a danger to
themselves or others, though not all such acts are considered insanity;
likewise, not all acts showing indifference toward societal norms are acts of
insanity.
1.3.2 DEFINITION OF
INSANITY
There is no precise definition of the term
insanity. Even IPC is silent as to the definition of Insanity. However, the word insanity is not used in section
84 of the penal code. It uses the expression ‘unsoundness of mind’, which too
is not defined under IPC. There, however, appears no difference in the
etymological meaning of the two terms – ‘insanity’ and ‘unsoundness of mind’ –
as they mean a defect of reason arising from a disease of the mind. Courts have treated the expressions
“Unsoundness of mind” and Insanity as equivalent to each other. But the term
insanity carries different meanings in different contexts and describes varying
degrees of mental disorder.
Some possible definitions of the term Insanity are enumerated
below:
·
According
to Merriam- Webster Dictionary:
1 : unsoundness of mind or lack
of the ability to understand that prevents one from having the mental capacity
required by law to enter into a particular relationship, status, or transaction
or that releases one from criminal or civil responsibility: as
a :
a disease, defect, or condition of the mind that renders one unable to
understand the nature of a criminal act or the fact that it is wrong or to
conform one's conduct to the requirements of the law being violated
b: inability to
understand and participate in legal proceedings brought against one : incompetence
c: inability to
understand the nature and purpose of a punishment (as the death penalty) to
which one has been sentenced
d: inability to
understand the nature and consequences of one's acts (as making a will) or of
events, matters, or proceedings in which one is involved
2: the affirmative defense of
having acted while insane[15]
·
According to
Oxford Dictionary:
Insanity is the
state of being seriously mentally ill; madness.[17]
1.4 DIFFERENT KINDS OF INSANITY
The
various kinds of mental diseases are discussed in the table[18]
below:
TABLE
1: DIFFERENT KINDS OF INSANITY
|
S. No.
|
Terminology
|
Implication
|
|
1.
|
Obsolete, insanity.
|
|
|
2.
|
a violent form of mania; incurable insanity.
|
|
|
3.
|
1.
A congenital condition of low intelligence.
2. a form of temporary insanity |
|
|
4.
|
Obsolete, amentia.
|
|
|
5.
|
Behavior characteristic of insanity. .
|
|
|
6.
|
a mental patient
|
|
|
7.
|
one of various forms of schizophrenia characterized by stupor,
sometimes alternating with excited behaviour and
mechanical,
repetitive behaviour, accompanied by muscular rigidity
|
|
|
8.
|
a state of maniacal excitement characterized by restless behavior
Confused speech, and sometimes hallucinations.
|
|
|
9.
|
Madness or insanity.
|
|
|
10.
|
Schizophrenia.
|
|
|
11.
|
1. Obsolete, the doctrine of demoniac possession.
2. Archaic. Demonomania. |
|
|
12.
|
Medicine. a monomania in which a person believes he is possessed
of devils.
Also called demonopathy.
|
|
|
13.
|
Medicine, Obsolete, a state in which a person believes he is
Possessed by a devil or has been endowed with
supernatural powers.
|
|
|
14.
|
a disordered mental condition in which the sufferer
is prone to hallucinations.
|
|
|
15.
|
a form of insanity or dementia praecox that can appear at
puberty, characterized by foolish behaviour and deterioration
of
The mental faculties.
|
|
|
16.
|
An acute mania.
|
|
|
17.
|
1. periodic insanity, once thought to be caused by the phases
Of the moon.
2. any form of insanity |
|
|
18.
|
An abnormal tendency toward deep melancholy.
|
|
|
19.
|
an abnormal fear of becoming insane
|
|
|
20.
|
an abnormal fear of madness.
|
|
|
21.
|
1. Medicine. a form of mental illness characterized by the
unreasonable convictionin the patient of his own
greatness, goodness, power, Or wealth.
2. an obsession with extravagant or grand actions |
|
|
22.
|
a condition of abnormal gloom or depression, often of an intensity to
become a form of insanity
|
|
|
23.
|
Obsolete, a person suffering from melancholia; a melancholic.
|
|
|
24.
|
a form of treatment for mental illness that involves placing the
Patient Under the influence of a narcotic.
|
|
|
25.
|
The process of correcting bodily or mental distortion.
|
|
|
26.
|
a mental disorder characterized by behaviour that stems from an elaborately constructed system of delusions of
persecution and
grandeur
|
|
|
27.
|
A state resembling paranoia.
|
|
|
28.
|
Moral insanity.
|
|
|
29.
|
Any severe mental disorder or disease.
|
|
|
30.
|
a psychotic condition marked by erratic behavior, withdrawal
from Reality
and intellectual and emotional deterioration.
Also called dementia praecox
|
|
|
31.
|
a mild form of schizophrenia, characterized by withdrawal,
inversion, etc
|
|
|
32.
|
A mild mania.
|
|
|
33.
|
a form of insanity or mental disorder in which the sufferer
imagines that he is an animal
|
|
|
34.
|
a form of hallucination in which the sufferer imagines he sees
Animals. Also called zooscopy
|
|
|
35.
|
zoopsia.
|
However,
this list is not exhaustive and all these terms are not covered under section
84 of IPC also.
1.5 UNSOUNDNESS OF MIND UNDER IPC:[19]
A person
suffering from unsoundness of mind is termed as non compus mentis i.e., not of
sound mind. There are four kinds of persons who may be said to be non compus
mentis:
1.
An idiot: An idiot is one who is of non- sane memory from
his birth, by a perpetual infirmity, without lucid intervals; and those are
said to be idiots who cannot count twenty, or tell the days of the week, or who
don’t know their fathers or mothers, or the like.
2.
One made non compus by illness:
A lunatic is one who is afflicted by mental
disorder only at certain periods and vicissitudes, having intervals of reason.
3.
A lunatic or a mad man:
Madness is permanent- lunacy and madness are
spoken of as acquired insanity, and idiocy as natural insanity.
4.
One who is drunk i.e., Delirium Tremens
1.6
RELEVANCE OF DEFENCE OF INSANITY
The
justification for providing unsoundness of mind as a complete defence is that
an insane person is incapable of forming criminal intent. Further, a mad man
has no will (furiosis nulla voluntas est) and he is like one who is absent
(furiosus absentis low est). In fact, a mad man is punished by his own madness
(furiosus furore Sui puniter).[20]
The insanity defence allows a mentally ill person
to avoid being imprisoned for a crime on the assumption that he or she was not
capable of distinguishing right from wrong. Often, the sentence will substitute
psychiatric treatment in place of jail term. The "not guilty by reason of
insanity" (NGRI) verdict rests in part on two assumptions: that some
mentally ill people cannot be deterred by the threat of punishment, and that treatment for
the defendant is more likely to protect society than a jail term without
treatment. More than 95% of
the countries have incorporated defence of insanity in their legal system.
The defence of insanity is rooted in the belief that
conviction and punishment are justified only if the defendant deserves them.
When a person is so mentally disturbed that his/her irrationality or compulsion
is impossible to control, that person lacks responsibility as a moral agent.
The basic pre-condition for punishment is that the person who committed the
crime must owe responsibility as a moral agent. It would be unfair to punish a
person in such an extreme condition.
[1]
The Indian penal code, 1860
(Act 45 of 1860) Chapter IV
[2] Macaulay, Macleod, Anderson and
Millett, A Penal Code Prepared by the Indian Law Commissioners, Pelham
Richardson ,
1838, Note B
[3]Section 6: Definitions in the Code to be understood subject to exceptions.—Throughout
this Code every definition of an offence, every penal provision, and every
illustration of every such definition or penal
provision, shall be understood subject to the
exceptions contained in the Chapter entitled “General
Exceptions”, though those exceptions are not
repeated in such definition, penal provision, or illustration.
[4] Blackstone’s Criminal Practice
2003, Peter Murphy (ed), Oxford, 2003, p34
[5]
Section 84: Act of a person of unsound mind.—Nothing is an
offence which is done by a person who, at the time of doing it, by reason of
unsoundness of mind, is incapable of knowing the nature of the act, or that he
is doing what is either wrong or contrary to law.
[6]
Section 76: Act done by a person bound, or by mistake
of fact believing himself bound, by law.—Nothing is an offence which is done by
a person who is, or who by reason of a mistake of fact and not by reason of a
mistake of law in good faith believes himself to be, bound by law to do it.
[7]
Section 81: Act likely to cause harm, but done without
criminal intent, and to prevent other harm.—Nothing is an offence merely by
reason of its being done with the knowledge that it is likely to cause harm, if
it be done without any criminal intention to cause harm, and in good faith for
the purpose of preventing or avoiding other harm to person or property.
[8]
Section 80: Accident in doing a lawful act.—Nothing is
an offence which is done by accident or misfortune, and without any criminal
intention or knowledge in the doing
of a lawful act in a lawful manner by lawful means and with proper care and
caution
[9]
Section 85: Act of a person incapable of judgment by
reason of intoxication caused against his will.—Nothing is an offence which is
done by a person who, at the time of doing it, is, by reason of intoxication,
incapable of knowing the nature of the act, or that he is doing what is either
wrong, or contrary to law; provided that the thing which intoxicated him was
administered to him without his knowledge or against his will.
[10]
Section 82: Act of a child under seven years of
age.—nothing is an offence which is done by a child under seven years of age.
[11]
Section 94: Act to which a person is compelled by
threats.—Except murder, and offences against the State punishable with death,
nothing is an offence which is done by a person who is compelled to do it by
threats, which, at the time of doing it, reasonably cause the apprehension that
instant death to that person will otherwise be the consequence
[12]
Section 96: Things done in private defence.—nothing is
an offence which is done in the exercise of the right of private defence.
[13] [1843]
All ER Rep 229
[14]
“Insanity” available at https://en.wikipedia.org/wiki/Insanity
accessed on 04-06-16 at 22.30 p.m.
[15]
Available at http://www.merriam-webster.com/dictionary/insanity
accessed on 20-04-2016
[16]
Available at http://delmelinscott.blogspot.in/2015/05/definition-of-insanity.html
accessed on 20-04-2016
[17]
Available at http://www.oxforddictionaries.com/definition/english/insanity
accessed on 20-04-2016
[18]
Available at http://www.thefreedictionary.com/insanity
accessed on 18-04-2016
[19]
Prof. S. N. Misra, “Indian Penal Code” Central law Publications,
Allahabad, 17th ed. ,2009 p183
[20] J. W. Cecil Turner ,“Kenny’s
outlines of criminal law”, 19th ed. , Universal Book Traders, Delhi, 2006 pp 69-92
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