October 28, 2021

Insanity as a Loophole in Criminal Justice System


In the Indian legal system, “Insanity Defence” is a defence in criminal law to protect an alleged from the guilt of a crime. It is based on the belief that at the duration of the crime, the person was unable to understand what he/she was doing. It is to be pointed out here that this is a legal theory and therefore only suffering from a mental illness is not reasonable to provide insanity. The burden of proof to prove insanity is on the alleged and he/she has to provide the court with evidence related to that of the prevalence of the evidence as in the civil case. This essay concentrates on the concept of insanity in Indian law and how it has become a loophole in the contemporary judicial system.


Every crime is a combination of a physical act along with corrupt state of mind. In which the mental element is considered as blameworthy as every crime is backed by intention. The main motive of criminal law is to extract the criminal propensity in an individual who intend to accomplish their criminal activities. The legal maxim, Actus non facitreumnisis sit mensreum state that a person’s act is not considered as guilty until its intentions are. The law seeks to curb mental condition in a person committing crime, it takes sufficient care to ensure that a person is punished without it. This is probably the reason behind the exclusive of certain class of person from punishment. Section 328-339 of Crpc deals with the procedures of unsoundness of mind committing an offence which clearly states that there can only be a trial of an insane person when the insanity of the person is backed by the evidence, in the absence of such evidence trial cannot be executed. 

In excusable acts, criminal intent is absent in the person committing it, whereas justification defence involves a defendant admitting that when they committed a criminal act, their actions were justified by the presence of general exceptions (section 76 to 106 of IPC). Which are:

  • Mental Disorder
  • Automatism
  • Intoxication
  • Mistake of Fact
  • Necessity
  • Legal Duty
  • Self-Defence
  • Duress

The present paper is more about the impacts for deformities in the Insanity defence, which also propounding on the huge impacts for deformities in the Insanity which eventually affect the well-being of the constitutes of society. The defence of insanity made to protect justice and fairness in the society which now has become tool for tool for criminals to way out from the criminal liabilities.

What is Insanity Defence?

Insanity is given in accordance with Section 84 of the Indian Penal Code as a defence under Indian Law. Though, the term “insanity” is not used under this provision. The Indian Penal Code uses the sentence “mental soundness.” In accordance with the code, the defence of insanity, or that can also be called the defence of mental insanity, arrives from M’Naghten’s rule.

In Section 84 of the Indian Penal Code, a person of an unsound mind shall act- Nothing is an offence committed by someone who is currently incapable to know the nature of the act or does what is wrong or contrary to legislation due to an absence of a sound mind. However, it should be pointed out that the framers of the IPC chosen to use the expression “insanity of mind” instead of the term “insanity.” Insanity’s scope is very restricted, while the mind’s insanity encircles a large area. For this defence, the following aspects are to be established:

  1. The accused was in a state of unsoundness of mind at the time of the act.
  2. He was incapable of knowing the nature of the act of doing what was either wrong or opposite to the law.

If anything is ‘wrong’, it is not necessary that it would also be ‘contrary to the law.’ The legal theory of insanity differs relatively from a medical concept. Not the ingredient of insanity or madness is recognised as a sufficient justification by law.

Origin/Historical Aspects

There were several tests used to affirm a person legally insane such as the Wild Beast Test, this test was the first to check the insanity put down in the case of Arnold, in this case, it was held that if any person cannot infer what is right or wrong then he would get insanity. Then came the Insane Delusion Test and test of capacity to differentiate between right or wrong, these three tests laid the beginning of the M’Naghten rule.

In 1843 the accused McNaughten was undergoing persecution mania and because of this disease, he thought that whatever the complications he is facing is because of British Prime Minister Robert Peel and McNaughten shot Mr Drummond thinking under a mistake that he was killing Prime Minister who was the private secretary of PM and this occurred because McNaughten was sick. So he defended insanity and the House of Lords acquitted him. This developed a lot of public emotion and a lot of tension was put on the House of Lords and they composed a special committee of Judges and laid down the rules for the plea of insanity and this is known as McNaughten’s Rules.

These rules are as follows:

All are supposed to be sane until the opposite be proved for the satisfaction of the


  • To claim the defence of the Insanity, one should clearly show that at the time
  • of the act, the accused was undergoing the deficiency or mental illness
  • At the time of doing the act, he did not know the essence of the act
  • At the time of doing the act, the accused do not know that what he was doing
  • was wrong

English Law considers insanity as a reasonable defence. The definition of insanity is based on Mc’naghten rules.

Criminal law is that body of the legal system which elucidates the crime, apprehension, and trials of the suspected person and many more things which are interweaved to it. Moreover, criminal law is the kind of set of rules and regulations through which the individual’s interest in society is carried out and protected in an amenable manner.

Difference between Medical Insanity and Legal Insanity

MEDICAL INSANITY – Medical insanity doesn’t mean a person is mad or crazy. Most of the time means that the person is on medicines or under consultation with a psychiatrist or therapist but can make conscious decisions and can do for them and direct an ordinary life.

LEGAL INSANITY – It is a situation in which a person has to be positioned under direct supervision having no decision-making abilities in things pertained to finance or else and another person has to take their responsibility and do their bidding. Insanity is mostly supposed a mental thing but in certain cases, it can be due to something biological like Alzheimer or senile dementia etc. a person may be mentally ill and not legally insane small aspects like stress, anxiety is also mental illness. But to validate legal insanity it takes 3 psychiatrists to declare to be legally insane and then the judge of the court declares the person to be insane and not fit the task society worst-case scenario is when they are sent to a psych ward. The law that associates itself to unsoundness/insanity of mind has been examined thoroughly in recent judgements of the Supreme Court in the case of Surendra Mishra vs the State of Jharkhand.[1]

Positive Features of the Law on the Prevention Of Insanity

1. It is a solution to situations where the defendant is, in fact, a person with a mental illness and therefore assists him, even though nowadays legal cases with such problems are few.

2. This protection prevents capital punishment because a person who is insane but who has confessed his crime cannot understand the gravity of what he has done and therefore the imposition of a death sentence cannot be remedied.

3. In a country like India where a suspected criminal is considered a minor, this protection assists the mentally disturbed person. If found, the accused in this case can be formally released and withdrawn.

4. For a person with a mental illness, this protection is like a “health care provider” because their condition is similar to that of a child who does not know what to do and does not know the consequences. Therefore, it would be immoral to impose a heavy burden on a survivor.

Disadvantages of the Laws to Prevent Insanity

1. because of the misuse of this protection, the Insanity Act has been abolished in any country. Countries such as Germany, Argentina, Thailand and many regions in England have already removed such defences. A similar example would be wrong to draw here but given the misuse of this defence in many cases there, cruel criminals are found not guilty of insanity simply undermining the very idea on which the law was built.

2. As already answered in the case, proving insanity and obtaining this protection protects the defendant and it is a great challenge to prove the same. While mental illness can be easily seen, it is legally a difficult task because the team has to provide physical evidence to prove the madness. It is very difficult to achieve the important Section 84 IPC to demonstrate legal insanity. It is for this reason that in many legal cases of insanity the defendant is charged and punished.

3. The defence of insanity may be misused to escape prosecution or punishment. It is very difficult to assess whether a person was mentally healthy or mentally ill at the time of the crime. In this way, the case depends on the discretion of the judge and in some way the law loses its essential purpose.

4.One of the most important points here is that it increases the value of the route. Continuing to prove that the defence of the lawsuits will hire a professional lawyer to prove his point in court. Also, the prosecutor will do the same. In this process, a large amount of money will be charged. And in the midst of all of this, a very small number of cases go to success in preventing insanity.

Need of a Psychiatrist

A standard screening procedure for all patients who deny insane self-defence is necessary. It is unfortunate that so far, no such procedures are in place in our country. Psychiatrists are often called in to perform mental health and medical examinations. In addition to treatment, courts may also request a variety of certificates. These include:

Confirming the presence or absence of mental illness if the respondent wants to be asked for insanity (the defendant’s mental state in the event of a crime);

The rigorous testing of trials in cases where mental illness does not impair the cognitive, emotional and moral capacity of a person contributes significantly to the defendant’s ability to defend the case (the defendant’s current status and powers at the time of sentencing).

The psychiatrist should consider the admission of patients for a thorough examination of the respondent.

It is the responsibility of the psychiatrist to educate the court, clarify psychological problems, to provide credible and purposeful opinions based on factual information and logical reasoning.

Review of related documents – It is the responsibility of the psychiatrist to review all relevant legal documents and obtain the reference authority, the reason for the referral, the date and time of the referral, and the time available to comment. The defendant’s other medical and psychological records must be reviewed before commencing the defendant’s examination. A careful history should be collected from all possible sources such as the respondent, his or her partner, the FIR, post-mortem and autopsy report, criminal status photos, behavioural report, interview with family members, and a past psychiatrist.

An examination of the history of presenting the disease – Defendants should be interviewed as soon as possible during the trial, however; this may not always be the case. At the beginning of the examination, the respondent must be informed of the purpose of the examination and the absence of confidentiality. The psychiatrist should record the date and time of the examination, personal details, diagnostic symptoms and physical injuries. Extensive research should be done on the history of the presentation of the illness, history, family history, personal history and premorbid personality. A psychiatrist should not forget to do tests for drug use in the past and present. [

An attitude-based assessment during the trial – The psychiatrist should make an effort to assess the respondent’s attitude during the trial. They should try to get detailed details of the incident with open-ended questions. It would be prudent to ask the respondent to provide a step-by-step account of his or her conduct, feelings, health, work, and social activities beginning 1 week before the trial and to be questioned up to 1 week after the posting of the offence. A thorough investigation should be conducted on his or her understanding, behaviour, feelings and perceptions, before, during, and immediately after the commission. The psychiatrist should ask open questions to get the defendant’s knowledge of the law, the nature of his action and whether he is in a position to inform the right and wrong.

Diagnosis – Given the nature of the test and the law that assumes that everyone is sane unless there is evidence to the contrary, it is wise to begin testing in the same way. The psychiatrist should resist making a clear diagnosis at the outset. Diagnosis requires keeping it open or temporary diagnosis to be considered. After collecting information from all possible sources, based on serial status tests, serial screening, psychiatric tests and laboratory investigations, the psychiatrist should conduct a thorough examination and provide his or her opinion regarding the patient’s diagnosis of life and current state of mind. He or she must also make a sincere effort to determine the character of the respondent at the time of the dismissal.

Future Points

There are no formal graduation courses in forensic psychiatry in India. Forensic Psychiatric Training and Psychiatric Service Centres are few in the country. Given the current state of mental health, the researcher is compelled to suggest:

  1. Establishing Forensic Psychiatry Training Centres to train mental health, justice, human rights and correctional officers at each state level,
  • Prison mental health services need to be started in each central prison as per the recommendations of the Bangalore prison study.
  • There is an urgent need to train a psychiatrist in each district hospital and medical college to assess the insanity and assess the suitability of the case so that investigative psychiatric services are easily accessible and unnecessary delays can be avoided in obtaining an expert opinion and
  • Responsible crime review and conducting systematic research in the area of ​​crime and reduction of liability.

Supreme Court Cases

In the case of Hari Singh Gond v. State of Madhya Pradesh, The Supreme Court noted that Section 84 of the IPC sets out a formal examination of the case in suspected cases of mental illness. There is no definition of ‘common sense. But the word ‘madness’ has no meaning at all. It is a term used to describe various mental disorders, in which the judgment is that the person is entirely responsible for the repetition of madness.

The accused was tried by her husband with an axe. A case was filed accusing him of insanity at the time of the incident, and the investigator recorded in the first paragraph about the defendant’s mental insanity. The defendant did not attempt to flee, nor did he attempt to remove the weapon that would have charged them. He was entitled to benefit from section 84. He was therefore charged with felony criminal mischief for firing on a sculpture with a shotgun, according to the report.

In Surendra Mishra v State of Jharkhand,[2]The Supreme Court ruled that a defendant seeking a pardon for a criminal offence under Section 84, must demonstrate legal madness and not medical madness. It is because the defendant is arrogant, bizarre and his brain is wrong, or because the mental or physical ailments he encountered gave him insight and attacked his feelings or indulged in certain unusual actions, or he became insane from time to time or that he suffered from epilepsy and misbehaviour or behaviour application. The distinction between medical and legal insanity was initially conceived as a protection against the indiscriminate involvement of insanity in criminal cases, where such a state of insanity could fall short of the actual conception of his actions. Therefore, at first, it seems that the Indian way of defending Insanity has its limits. Or, the prevailing opinion about Insanity suggests the opposite.

Indian law in this regard is broader than the English position. The legal aspects have been shaped by the various historical judgments that govern the subject. In Ashirudeen Ahamed v State[3]The court system was geared towards building another Insanity trial. It was stipulated that to obtain protection under Section 84 of the IPC, the defendant must establish any of the following, namely, (1) that he did not know the nature of the alleged crime, or (2) he knew unknowingly it was illegal and (3) he did not know it was wrong. The case involved a father who betrayed his son in the belief that he was commanded by God to do so. He said he received a divine command in a dream. The court ruled in favour of the man because he said he could not know that his actions were morally wrong. In so doing, the court made a significant difference between the words ‘wrong’ and ‘illegal’. This was a deviation from the decision of the two benches in Geron Ali v. Emperor[4]r, who held the words ‘wrong’ and ‘illegal’ as doing only one test. The case has led to the expansion of Insanity’s defence base in India. It became clear that Indian law gives the accused who wants to defend himself to be insane three ways to avoid legal consequences for his actions. If one of the conditions is not sought based on reduced risk, self-defence is effective. The Jurists of the time regarded this as a sensitive lacuna in the Indian way of defending the Insanity.

Subsequent Judgment of the Supreme Court of Allahabad in Lakshmi v. State [5]added much to the confusion that concealed Insanity’s self-defence, while the court concluded that incompetence, as well as human conduct, is what is protected in the last part of Article 84. Before any of them, the defendant is unable to defend himself under this Article.

In Sheralli Wali Mohd. v State of Maharashtrathe Supreme Court, when challenged by the Supreme Court of Calcutta, affirmed the Calcutta High Court’s view that, to make a profit under Section 84, it must be proved, when the commission of action, the appellant, due to incomprehension, such actions were morally wrong or illegal. The decision further casts doubt on the legal findings of the courts.

Finding a person’s attitude while committing a crime is extremely difficult. The subtleties of the human mind make it inaccessible to human thinking. In Dayabhai Chhaganbhai Thakkar v State of Gujarat, [6]The Supreme Court ruled that in determining the application of Section 84, the Court should consider the circumstances before, travelling and following the crime. The relevant facts are the motive for the crime, the previous history of the suspect’s attitude, his state of mind at the time of the trial and the events immediately following the incidents that shed light on the mental state of the accused. The court recommended the need for a comprehensive approach based on specific evidence based on each case. The standard for determining the operation of Section 84 is that on a standard basis, accepted by a reasonable man, the action was right or wrong. In the Amrit Bhushan v Union of India[7], the Supreme Court ruled that Insanity as one of the criminal cases must be based on the fact that the defendant could not understand the nature and consequences of his action at the time of the prosecution. If it is not possible to do so, the burden could not be forgiven. The law requires everyone to be sane when a crime is committed. Even if the madman has some beneficial moments, the law takes the case to be done in a permissible space unless it appears to have been committed in a time of confusion.

[1] AIR 2011 SC 627

[2] AIR 2011 SC 627:2011(3)SCC (Cri) 232.

[3] 1949 CriLJ 255.

[4] AIR 1941 Cal 129.

[5] AIR 1959 ALL 534, 1959 CriLJ 1033.

[6] 1964 AIR 1563, 1964 SCR (7) 361.

[7] AIR 608, 1977 SCR (2) 240.

Author- Vandana Tiwari & Akshita Jaiswal (New Law College, Pune)


Leave a Reply