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PROJECT WORK OF POLITICAL SCIENCE

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ODD SEMESTER INTERNAL EVALUATION

TOPIC

“INTERNATIONAL COURT OF JUSTICE”

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Submitted To : Submitted by:

Divya Ma’am Name- SHIVANI

Assistant Professor Student ID- 18FLICDDN02141

ICFAI Law School BA-LL.B. (H.) II Year, Section- C

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The ICFAI Law School,

The ICFAI University, Dehradun

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 TABLE OF CONTENTS

INTRODUCTION…………………………………………………………3

HISTORICAL PERSPECTIVE OF INSANITY OF INDIA………………4-5

SUPREME COURT CASES ON INSANITY……………………………..5-8

PERSONS OF UNSOUND MIND…………………………………………9-11

CONCLUSION……………………………………………………………..12

BIBLIOGRAPHY…………………………………………………………..13

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 INTRODUCTION

The concept of “responsibility” arises with most of the cases involving human

conduct and presence of guilt, knowledge of the act and its consequences.

A person thoroughly obivious about its surrounding, or unaware of the

distinction between right and wrong, is not the one to punish.

Punishing someone who is not responsible for the crime is a violation of

basic human rights and fundamental rights under Constitution of India. It

also brings the due process of law, if that person is not in a position to

defined himself in the court of law, evoking the principle of natural

justice.
1

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. 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. The affirmative defence 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. Section 84 of Indian
Penal Code (IPC) deals with the “act of a person of unsound mind” and discusses insanity

3
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.

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. 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. 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.

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 1
HISTORICAL PERSPECTIVE OF INSANITY OF INDIA

Insanity defence has been in existence since many centuries; however, it took a legal position
only since the last three centuries. There were various tests used to declare a person legally
insane such as Wild Beast test, 2 The Insane Delusion test,3 and “test of capacity to distinguish
between right and wrong.”4 These three tests laid the foundation for the landmark Mc
Naughten rule.

In 1843, Daniel Mc Naughten, a wood-turner from Glasgow, shot and killed Edward
Drummond mistaking him for Sir Robert Peel. Mc Naughten believed that he was persecuted
by the Tories, and evidence was brought to show that he had been totally deluded on this
subject for some time.5,6His state of mind was apparent from the outset when he had to be
coaxed, and finally tricked, into pleading “not guilty.” After hearing seven medical witnesses
testify that he was completely insane, the judge stopped the trial, the jury brought in the

1
Gostin LO, Larry OG. A Human Condition: The law relating to mentally
Abnormal Offenders. Vol. 2. MIND; 1997.)
2. R v. Arnold.1724, 16 St. Tr.695.
3.Hadfield Case. 1800, 27 St. Tr.128.
4.Bowler’s Case. 1821, 1 Collinson Lunacy 673.
5.Daniel Mc Naghten’s Case. 1843
6.Allderidge PH. Criminal insanity: Bethlem to Broadmoor. Proc R Soc Med.
1974
7.Ashokan TV. Daniel McNaughton.
8.Ramchhodds R. Thakore DK, Manohar V. Ratanlal & Dheerajlal’s the
Indian penal code Gurgaon: Lexis Nexis, 2013

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special verdict without summing up and without retiring, and Mc Naughten was forcibly
committed to the Bethlem Hospital.6,7 Immediately thereafter, five propositions were drawn
which were called Mc Naughten rules.7

This Mc Naughten rule became a legendary precedent for the law concerning the defence of
insanity. Even, in India, insanity defence law, Section 84 IPC is solely based on the Mc
Naughten rules. Since it is drafted, no changes have been made. However, in 1971, there was
an attempt by the Law Commission of India to revisit the Section 84 in their 42 nd report, but
no changes were made.

Section 84 of IPC deals with the “act of a person of unsound mind.” 8. “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.”

On analysis of the Section 84 IPC, the following essential ingredients can be listed. For the
sake of easy understanding, the Section 84 IPC can be divided into two broad categories of,
major criteria (medical requirement of mental illness) and minor criteria (loss of reasoning
requirement). Major criteria (mental illness requirement) mean the person must be suffering
from mental illness during the commission of act. Minor criteria (loss of reasoning
requirement) mean the person is:

a. Incapable of knowing the nature of the act or

b. Incapable of knowing his act is wrong or

c. Incapable of knowing it is contrary to law.

Section 84 IPC, clearly embodies a fundamental maxim of criminal jurisprudence that is, (a)
“Actus nonfacit reum nisi mens sit rea” (an act does not constitute guilt unless done with a
guilty intention) and (b) “Furiosi nulla voluntas est” (a person with mental illness has no free
will).9 This means that an act does not constitute a crime unless it is done with a guilty
intention called “mens rea.”10 Hence, Section 84 IPC fastens no culpability on persons with
mental illness because they can have no rational thinking or the necessary guilty intent.

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 2
SUPREME COURT CASES ON INSANITY

Modern criminal law is based on the belief that humans are morally responsible and not harm
causing agents. To be held criminally responsible, two essential elements have to be proven,
beyond reasonable doubt, (a) the person committed the act (actus reus)11 (b) in doing so, the
person acted with his or her own free will, intentionally and for rational reasons (mens rea). 10

Psychiatrists may be asked to assist the court in determining whether certain mental disorders
affected a person's ability to form the intent necessary to make that person legally culpable.

Medical Insanity V. Legal Insanity

Section 84 lays down the legal test of responsibility in cases of alleged crime done by a
person with mental illness. There is no definition of “unsoundness of mind” in the IPC. The
courts have, however, mainly treated this expression as equivalent to insanity. But the term
“insanity” itself has no precise definition, carries different meaning in different contexts and
describes varying degrees of mental disorders.12Every person who is mentally ill is not ipso
facto exempted from criminal responsibility. A distinction is to be made between legal
2
9. Gajraj Singh V. State of Rajasthan. Appeal (crl.)1313 of 2006. Date of
Judgement on 4 June; 2007.
10.Gerber RJ. The Insanity Defence.Port Washington, New York:Associated
Faculty Press;1984.

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insanity and medical insanity. A court is concerned with legal insanity, and not with medical
insanity.9,12 Any person, who is suffering from any kind of mental illness is called “medical
insanity,” however “legal insanity” means, person suffering from mental illness should also
have a loss of reasoning power. The term legal insanity also refers to the “mental state” of a
person at the time of committing crime and nothing else. This is purely a legal concept and is
unrelated to the various psychiatric diagnoses.

In simple words, legal insanity means, at the time of the commission of the act, the person
should be suffering from mental illness and also have a loss of reasoning power. This issue is
clearly depicted in Section 84 IPC as that person incapable of knowing:

a. The nature of the act, or

b. That he is doing what is either wrong or

c. Contrary to law.

Mere abnormality of mind or partial delusion, irresistible impulse or

compulsive behavior of a psychopath affords no protection under Section 84

IPC.
9

In one of the landmark decisions, in the case of Surendra Mishra versus state of Jharkhand, 13
the Apex Court has stated that an accused who seeks exoneration from liability of an act
under Section 84 of the IPC is to prove legal insanity and not medical insanity. Further, it
also said that expression “unsoundness of mind” has not been defined in the IPC, and it has
mainly been treated as equivalent to insanity. But the term insanity carries different meaning
in different contexts and describes varying degrees of mental disorders. Every person who is
suffering from mental illness is not exempted from criminal liability. The mere fact that the
accused is conceited, odd, irascible, and his brain is not quite all right, or that quite all right,
3
or that the physical and mental ailments from which he suffered had rendered his intellect

3
11. Ashworth A, Horder J. Principles of Criminal law oxford, UK: Oxford
University Press;2013
12. Hari Singh Gond v. State of Madhya Pradesh. 2008, 16SCC 109.
13.Surendra Mishra v. State of Jharkhand

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weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at
short intervals or that he was subject to epileptic fits and there was abnormal behavior or the
behavior is queer are not sufficient to attract the application of Section 84 of the IPC. 9

The Apex Court in its judgment reported that though accused suffered from certain mental
instability of mind even before and after the incident but from that one cannot infer on a
balance of preponderance of probabilities that the appellant at the time of the commission of
the offense did not know the nature of his act; that it was either wrong or contrary to law,
hence rejected insanity defense.13,14 In a similar case, despite having a medical history of
insanity proved by evidence in court, the court convicted the accused based on his subsequent
conduct viz., his act of concealing the weapon, bolting the door to prevent arrest and
absconding thereafter as the said acts were held by the court to be a display of consciousness
of the guilt.15

The crucial point of time for determining the state of mind of the accused is the time when
the offense was committed. The person suffering from mental illness is one of the facts for
Section 84 IPC. However, other facts which also needs to be given importance are: Motive
for the crime, the previous history as to mental condition of the accused, the state of his mind
at the time of the offense, and the events immediately after the incident that throw a light on
the state of his mind.16 To summarize, it is not only the fact that the person is suffering from
mental illness but it is the totality of the circumstances seen in the light of the evidence on
record to prove that the person was also unable to appreciate the nature of the act or
wrongdoing or that it was contrary to the law is appreciated in the court of law for insanity
defense.

Burden of Proving in Insanity Defence

Under law, every man is presumed to be sane and assumed to possess a sufficient degree of
reason to be responsible for his acts unless the contrary is proved. 17 Every person is presumed
to know the natural consequences of his act. Similarly, every person is also presumed to
know the law. The prosecution does not have to establish these facts.

In insanity defense, there are two aspects of proving an offense, which are as follows:
a.Commission of crime and

b. Insanity of Defence

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The burden of proving the commission of an offense is always on the prosecution, and that
never shifts. The prosecution has to prove the same beyond a reasonable doubt. However, the
onus of proving the existence of circumstances (Section 84 IPC) for insanity defense would
be on the accused (Section 105 of the Evidence Act) and the court shall presume the absence
of such circumstances. The accused has to prove by placing material before the court such as
expert evidence, oral and other documentary evidence, presumptions, admissions or even the
prosecution evidence, satisfying that he was incapable of knowing the nature of the act or of

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knowing that what he was doing was either wrong or contrary to law.18,19 The Supreme Court
have ascertained that the crucial point of time at which unsoundness of mind should be
established is the time when the crime is actually committed and the burden of proving this,
lies on the appellant for claiming the benefit of the Section 84 provision.19,20,21 In Dahyabhai
Chhaganbhai Thakker versus state of Gujarat, this court has held that even if the accused was
not able to establish conclusively that he was insane at the time he committed the offense, the
evidence placed before the court may raise a reasonable doubt in the mind of the court as
regards one or more of the ingredients of the offense, including mens rea of the accused and
in that case the court would be entitled to acquit the accused on the ground that the general
burden of proof resting on the prosecution was not discharged.16 Though the burden is on the
accused, he is not required to prove the same beyond all reasonable doubt, but merely satisfy
the preponderance of probabilities.14,22 The burden of proof casted upon him is no higher than
that rests upon a party to civil proceedings.14

Plea of Insanity

The onus of proving unsoundness of mind is on the accused, hence the plea of insanity should
be taken by the accused or by his lawyer or his family members or previous history of
insanity is revealed, it is the duty of an honest investigating officer to subject the accused to a
medical examination and place that evidence before the court and if this is not done, it creates
a serious infirmity in the prosecution case and the benefit of doubt has to be given to the

4
14. Sudhakaran v. State of Kerela. 2010(10) SCC 582.
15.Jai lal v. Delhi Administration. AIR 1969 SC 15.
16. Dahyabhai Chhaganbhai Thakker v. State of Gujarat 1964, 7SCR 361.
17. State of M.P.v Ahmadull. AIR 1961 SC 998.

10
accused.12 Hence, the plea of insanity should be taken during the investigation or during the
trial in the lower court not during the appeal to the higher court.12

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18. State of Rajasthan v. Shera Ram @ Vishnu Dutta. 2012, 1SCC602.
19. Elavarasan v. State RbIoP. 2011(7) SCC 110.
20. Anandaro Bhoshale v. State of Maharashtra. 2002, 7 SCC 748.
21. Ratan Lal v. State of Madhya Pradesh. 1970 (3) SCC 533
22. T. N. Lakshmaiah v. State of Maharashtra. 2002, 1 SCC 219.
23. Archbold 35
th
Edn. pp. 31-32
24. Russel 12
th
Edn. Vol. 1. p. 103; 1 Hale P.C. 31.
25. Hale P.C. 30.
26. Davis, (1881) 14 Cox 563.
27. Bheleka Aham, (1902) 29 Cal 493.
28. State of Maharashtra v. Govind Mhatarba Shinde (2010) III Cr. L.J.
3586(Bom.).

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 PERSONS OF UNSOUND MIND

There are four kinds of persons who may be said of to be not of sound mind (non compos
mentis) :

1. An idiot;
2. A lunatic or a madman;
3. One made non compos by illness; and
4. One who is drunk.

Idiot- A person who is of non-sane memory from his birth by a perpetual infirmity, without
lucid intervals is said to be an idiot. Idiot is also one who cannot count twenty or tell the days
of the week or who does not know his father or mother or the like.23

Lunatic- A lunatic is a person who is afflicted by mental disorder only at certain periods and
vicissitudes, having intervals of reason.24 But madness is permanent. Lunacy and madness are
said to be acquired insanity and idiocy as natural insanity.

Non Compos mentis- A person made non compos mentis by illness is exempted from
criminal liability, in cases of such acts which are committed while under the influence of his
mental disorder.25

Insanity brought on by drunkenness- Drunkenness is no excuse but delirium

Medical examination of accused

The plea of insanity is raised by the accused, it is the duty of the prosecution to subject the
accused to medical examination immediately 28. This is important because if it is revealed
during the course of investigation that the accused was suffering from mental disease, the
prosecution is further duty bound to place before the court at all the evidence that could be
available to show that the accused was in a proper state of mind when he committed the
alleged offence. This is to rule out the plea of mental disease or insanity that may likely be
raised at the trial. The failure of the prosecution to do so creates serious infirmity in the

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prosecution case of murder. In case of failure on the part of prosecution, it may entitle the
accused to seek benefit of doubt.

Unsoundness of mind

The word unsoundness of mind has not been defined in the code. To Stephen it is equivalent
to insanity. Insanity means a state of mind in which one or more functions of feeling,
knowing, emotion and willing is performed in an abnormal manner or is not performed at all
by reason of some disease of the brain or the nervous system. 29 Insanity includes lunacy,
mental derangement, mental disorder, madness and so on. Section 84 does not embrace all
types of insanity known to medical science but only such varieties as render a person
incapable of knowing the nature of the act he was doing or that even if he knew it, he did not
know it was either wrong or contrary to law. The expression unsoundness of mind as used in
this section is wide enough to include all varieties of want of capacity whether temporary or
permanent, natural or supervening, whether it arises from disease or exists from the time of
birth. There are numerous degrees of insanity. In order to be an excuse insanity must reach
that degree which is described in the latter part of section 84. If a person is found of unsound
mind, his liability for an offence is determined by the ordinary rules in regard to insanity, it
does not matter whether the insanity arose from disease of the brain or from the persistent
indulgence in intoxicating drugs or liquor.29

The penal code uses the words “unsoundness of mind” and not the word ‘insanity’. The use
of the more comprehensive term “unsoundness of mind” has the advantage of doing away
with the necessity of defining ‘insanity’. Mere unsoundness of mind is not a defence, it must
be such as affects the judgement of a person or in other words when it renders the sufferer
incapable of knowing the nature of the act or that he is doing what is either wrong or contrary
to law.

In case of murder when defence of insanity is claimed by the accused the onus of proving
unsoundness of mind is on the accused. 30 But where during the investigation previous history
of insanity is revealed, it is the duty of an honest investigator to subject the accused to a
medical examination and place that evidence before the court and if this is not done, it creates
a serious infirmity in the prosecution case and the benefit of doubt has to be given to the
accused. The onus, however, has to be discharged by producing evidence as to the conduct of
the accused shortly prior to the offence and his conduct at the time or immediately
afterwards, also by evidence of his mental condition and other relevant factors. The burden of

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proof however, is not so onerous as that upon the prosecution to prove that the accused
committed the act with which he is charged. The burden on the accused is no higher than that
resting upon a plaintiff or a defendant in a civil proceeding.

Theory of integration of the self

Opposed to the psychological hypothesis of “irresistible impulse” and its current equivalent is
the theory of the “integration of the self”. 31Serious mental disease is a drastic impairment of
all principle aspects of the personality. A pychotic person does not actually understand the
moral significance of his conduct. The absence ofwww the power of self-control would
involve an incapacity of knowing right from wrong. It is as true that a man who cannot
control himself does not know the nature of his acts as that a man who does not know the
nature of his acts is incapable of his acts is incapable of self-control.

Durham Rule

Durham was charged of house-breaking and he pleaded insanity in his defence. The circuit
court of appeals declared that the existing tests of criminal responsibility are obsolete and
should be superseded.33 The existing texts included both the M’Naghten Rule and the
“irresistible impulse” test. In this case the court evolved a new test, namely,” simply that an
accused is not criminally responsible if his unlawful act was the product of mental disease or
mental defect”. Mental disease and mental defect were defined. Only because the accused
was suffering from a mental disease or mental defect at the time he committed the act in issue

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29. Harka, (1906) 26 A.W.N. 193.
30. Siddhapal kamala Yadav v. state of Maharashtra (2009) I Cri. L.J. 373
(S.C.).
31. Hall, Jerome; General Principles of Criminal Law (2
nd
ed.) p. 495
32. Stephen; 2 H. Cr. L. 171(1883) Quoted in Hall.

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would not suffice. He would still be responsible for his unlawful act if there was no casual
connection between such mental abnormality, the burden then lie upon the prosecution to
prove beyond responsible doubt that the act was not the product of such abnormality. The two
tests M’Naghten rule and the irresistible impulse test could still be employed and the Durham
rule was in addition to those tests. Thus the Durham product test means, the simple fact that a
person has a mental disease or defect is not enough to relieve him of responsibility for a
crime. There must be a relation between the disease and the criminal act, such that the act
would not have been committed if the person had not been suffering from the disease.

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CONCLUSION

Psychiatrists may be asked to assist the court in determining whether certain mental disorders
affected a person’s ability to form the intension necessary to make that person legally
culpable. The medical discipline describes the patient’s mental status on a continuum thata
ranges from extremely ill to completely healthy. However, the legal language is clearly
categorical in nature, either criminally responsible or not responsible. Whle a psychaiatrists is
concerned with medical treatment of individual patients. Courts are concerned with the
protection of the society from the possible dangerousness from these patients. Psychiatrist

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33. Durham v. United States, 214 F. 2d. 862.

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needs to understand that it is not only the fact that the person ids suffering from mental illness
but it is the totality of the circumstances seen in the light of the evidence on record to prove
that the person was also unable to appreciate the nature of the act or wrongdoing or that it
was contrary to the law is appreciated in the court of law for insanity defense. Above all that
Forensic Psychiatric Informal Training and Clinical Services Providing Centres are few in
number across the country. To provide fair and speedy trial, forensic psychiatry needs to be
given utmost importance.

BIBLIOGRAPHY

1. www.lexisnexis.com
2. www.lawyerservices.in
3. www.indiankanoon.com
4. www.casemine.com
5. www.googlescholar.co.in

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