Rewriting Section 84 of the Indian Penal Code, 1860 – Making the Critical Intersection between Law and Policy

Abstract: The insanity defense is codified in Indian statute under section 84 of the Indian Penal Code. While itWhile, it is based on the McNaughton Rules, Indian draftsmen have preferred certain modifications, which have been a source been a source of ambiguity. Moreover, the term “unsoundness of mind” lacks a definition in the IPC, and courts have taken it upon themselves to answer the psychiatric question of the degree of insanity. Such circumstances have led to erroneous and non-uniform applications of section 84. Throughout the course of this paper, I cite instances from various cases that example such shortcomings. In the section that follows I draw from a few lesser-known cases, in that they did not permeate courts in the future as precedence, to propose a reformative exercise re section 84, so as to give it a more holistic effect, such that it aligns with the fundamentality of insanity law as well as modern-day trends in mental health and policy.

Introduction

In 2019, the legal community’s most prized character popularized the insanity defense, when Annaliese Keating ever so theatrically exonerated her ex-lover’s father, Sir Nate Sr., who was on trial for murder. A careful rewatch of that episode will show no mention of any statute to support this acquittal, but as the legal community has rightfully informed us, courtroom dramas are hardly a representation of reality. Unfortunately, this episode of How to Get Away with Murder, where an intuitive standard of the masses’ understanding of insane persons was applied, rendered the closest relationships of kin with Indian courtrooms. The reasons for these inadequacies are bifold, firstly to do with the lackluster application of expert opinions from qualified psychiatrists in insanity cases. The second is that the phrase “unsoundness of mind” under section 84 lacks an interpretive clause, a problem compounded by the judiciary’s laxity in defining it. The few courts that have cared to define the term, have defined it ambiguously, giving leeway for unethical advocacy and treating insanity as a loophole as opposed to a legitimate defense. To combat these shortcomings, I conclude this paper by reforming section 84 with a proposal to replace the term “unsoundness of mind” with “complete impairment or destruction of the cognitive faculty of reasoning”, a reform supplemented by the introduction of an additional prong qua the standard of evidence to be presented for a successful insanity plea.

Premise

In India, the insanity defense has been envisaged by the courts through their interpretation of s. 84 of the IPC, reproduced below.

“84. Act of a person of unsound mind. —Nothing is an offense 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.”

This section, on a surface level perusal, raises several questions of interpretation, re the meanings of unsound mind, the considerations that must be made to appreciate the “nature of the act,” the difference between the phraseologies of “wrong” and “contrary to law” and the proximity of the causal link that section 84 anticipates between “unsoundness of mind” and the consequent incapacity of knowledge. It also raises multiple questions on the laws of evidence, as to the onus probandi and the plausible methodology to prove that the alleged unsoundness cast a shadow over the accused at the time of committing the crime. I will begin this paper by examining how Indian courts have tackled these issues, through a wide berth of judicial interpretation and proceed to adumbrate the shortcomings these decrees have obviated in the text of section 84.

Re the Law of Evidence that is read with Section 84

In 1964 the Apex Court delivered the most instructive piece of jurisprudence when it came to insanity pleas in Dahyabhai Chhaganbhai Thakker v. State Of Gujarat. Like most cases of insanity, the defendant invoked the insanity defense when he was accused of murdering his wife under s. 302. Before examining the merits of the insanity plea on facts, Subarao, J, laid down certain fundamental supplementary rules that were to govern an insanity plea.

The court upheld that the onus probandi of proving insanity lay on the defense, cementing the relationship between s. 105 of the Indian Evidence Act, and s. 84 of the IPC. However, the court stated that the standard of proof must be a balance of probabilities, as opposed to the established standard in criminal proceedings i.e., ‘beyond reasonable doubt’. This rule of law was arguably the most valuable part of the judgment for defense lawyers. Proving insanity at the time of commission, as opposed to during surrounding events, is no simple exercise. However, it was clarified by the court that the prosecution still had to show beyond reasonable doubt that men’s rea existed, in the first place, before a question of insanity arises.

While the SC did engineer robust jurisprudence for insanity pleas, they detrimentally omitted to mention the need for expert opinions to decide an insanity plea. Over the years subsequent, Indian courts have engaged in a self-absorbingly extensive exercise of distinguishing between the legal and medical standards of insanity. They thereby alienated the arguably interdisciplinary nature of an s. 84 matter. They have consistently reiterated that all forms of insanity recognized by medical science do not stand as a ground for absolution (1).  This is correct, given that insanity in law envisages certain specific aftermaths the insane person is subject to, i.e., an inability to differentiate right and wrong either legally or morally. However, in the process of emphasizing this distinction, courts have failed to recognize that they cannot analyze the psychology of a person. Assuming that courts are constituted by humans who emulate a standard of reasonableness and are categorically not insane, the court would evidently not have the psychological know-how to decide whether one is insane or not. Judges are privy to a position on the bench for their legal and not psychiatric expertise.  Unfortunately, a perusal of most of the landmark cases on insanity, most notably the Sheralli Walli Mohammad case before the SC will show judges themselves attempting to analyze whether the accused was insane, taking on the role of a psychiatrist. (2)

Courts have occasionally used reports from third-party psychiatric facilities. The Leela Balkrishna Nair case used the Thane Mental Hospital’s diagnosis of the accused while acquitting him (3). However, a report may not be scrutinized and vetted, unlike the presence of a qualified psychiatrist. Reports are easily manipulable as opposed to sworn in-person testimony. Additionally, s.45 of the Indian Evidence Act, grants relevance to the opinions of third-party experts when a question of science becomes pertinent, such as those that section 84 requires a court to address.

Insanity at the time of commission is a question of fact, not law. A practicing psychiatrist must be called upon. Courts have explained that medical insanity must include an element of the accused not knowing the nature of the act/that it is contrary to the law/that it is wrong. While the judicial objective is ultimate, the same is a function of a question of psychiatry. The latter question is a process to answering the ultimate former. This paper proposes that psychiatrists be called on to decide not only whether they were insane, but also whether this insanity caused the defendant to suffer from an inability to know the nature/legality/rightness of the actus reus under section 45 of the Indian Evidence Act. A division bench of the Gujarat High Court (4) has echoed this sentiment, but it has found little application in future insanity cases, with few HC cases mentioning expert opinions and even fewer using section 45 of the Indian Evidence Act. Such a statutory mandate must be broadly applied, with courts considering the economic status of the defendant in deciding whether the government or the defendant should provide (financially) for the psychiatrist. A plausible application may be where courts appoint psychiatrists from government hospitals, should they find the defendant belonging to economically struggling strata. This would give such a prong, a holistic
application and viable enforcement.

Re “Unsoundness of Mind” 

The need for expert opinion arises from an issue deep-seated in the text of the IPC itself- the phraseology “unsoundness of mind.” The IPC’s draftsmen, while founding the rules on the McNaughton case, made an explicit departure from it by preferring “unsoundness of mind” over “insanity” or “defect of reason, from the disease of the mind.” (5) Scholars have speculated the move as one driven by a need for clarity. (6) However by not defining “unsoundness of mind” under the interpretative Chapter II of the Code, this clarity was hindered. Most laws, deal with aspects that courts may not be equipped to easily understand, which is why interpretive interpretive clauses are found in every legislation. This shortcoming has been criticized by multiple courts, inter alia, the Madras High Court,(7) the Bombay High Court,(8) and Apex Court. (9) The 42nd Report of the Law Commission of India on the IPC reiterated the same issue.

Some courts interpreted “unsoundness of mind” as synonymous with insanity. However, this requires insanity to be defined, which is largely absent in medical, toxicological, or legal literature. (10)This has in turn provided courts an even wider berth plagued by confusion. A policy-based perspective shows that providing a wide ambit to the definition of unsoundness of mind, which is merely an initial qualifying element of the insanity defense, as opposed to the narrower qualifying elements enumerated in the latter half of section 84, is problematic. Scholarly literature on the IPC, (11) has also attempted to draw from other statutes, such as the Indian Contract Act. Section 12 of the same defines unsoundness as being unable to assess the contract’s impact on one’s interests. However, this definition is inherently focussed on using the consequences it poses (re agreements), which is likely to create the same confusion as has the existing section 84 of the IPC, which may explain why this interpretation has only been adopted in a few cases.

Other courts, most notably the SC, have equated unsoundness of mind simply to mental disorders or “diseases of the mind.” While this may not seem like an issue, a statistical analysis of the implications of such a definition show otherwise. Recent data from the World Health Organisation (WHO) estimated that on average 7.5% of Indians suffer from mental disorders. The same data set also reported 56 million Indians suffering from depression and 38 million from anxiety disorders, all of whom could plead insanity, under such a definition. Given that India’s population stands at 138 crores, this would imply that 10.35 crore Indians (103.5 million)
would prima facie fulfill the first element of the insanity defense simply because they have some form of a mental disorder.

Take for instance T.N. Lakshmaiah v. State of Karnataka (2001). (12) The case saw appeals all the way to the Apex Court. The defendant pled insanity for “moderate depression”, a “disease of the mind,” thereby entitling him to section 84’s exception. Neither the trial, the High nor the Supreme Court rejected the plea prima facie on the grounds that insanity was pleaded because the accused was diagnosed with “moderate depression.” While the SC did ultimately reject the defense, jurisprudence that qualified simply mental disorders as unsoundness of mind, provided room for the defendant to make such a plea. Such statutes ultimately lead to precious court time being wasted. This in turn stifles the Ministry of Justice’s advancement towards speedy justice, making statutorily restricting section 84 the need of the hour. Such amendment must preclude those with mental disorders that cause negligible impairment to one’s men’s rea from misusing section 84.

Moreover, 20th-century cases, such as Omkar Lalv. State of Madhya Pradesh (1986), (13) have affirmed that minor disorders like depression do not qualify for any protection under section 84, however, have not permeated insanity jurisprudence. The fact that the Madras High Court has taken to even disqualify “major depression” from being grounds for insanity, (14)further calls for the legislative action this paper seeks to propose.

Laxity of the courts in defining “unsoundness of mind”

Apart from the above rare instances, most Indian courts have exhibited laxity, by dangerously deciding insanity pleas without defining the primary essentiality in section 84, “unsoundness of mind.” Most courts have submitted to its subjectivity and taken purely to intuitive standards, facts, and circumstances. (15) The SC’s inability to consolidate the diverging is evident in the case of Surendra Mishra v. State of Jharkhand (2011). To quote C.K. Prasad, J-

“Expression ‘unsoundness of mind’ has not been defined in the Indian Penal Code and it has mainly been treated as equivalent to insanity. But the term insanity carries different meanings in different contexts and describes varying degrees of mental disorder….The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect 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 Indian Penal Code”

The court only stated what is outside section 84’s scope while the rest of the judgment implicitly accepts the confusion behind ‘unsoundness of mind’. The judgment was made in 2011, a time when mental health resources were sufficient to analyze the same. Albeit the burden for this issue may be shouldered by both the court and the fact that the Indian judiciary has historically followed an adversarial as opposed to an inquisitorial system. An inquisitorial system could be incredibly useful while analyzing novel issues that counsels may themselves be incapable of assisting the courts satisfactorily. To conclude the lack of a definitive clause has permitted courts to employ a wide berth of interpretation interpretation for the term “unsoundness of mind,” calling for the legislature to course correct the same.

Reform

To conceptualize effective legislative reform, it is integral that one examines and balances the fundamental features of law with the evolving times. The insanity defense comes from the Latin legal maxim and principle of natural justice, ‘actus non facit reum nisi mens sit rea,’ translating to an act that does not constitute guilt unless committed with a guilty intention (16). If the mens rea proven by the prosecution is debunked, the accused may not be held criminally guilty. The sub-root that emerges from this maxim is ‘furiosi non voluntas est’ (17) which means that an insane human may not be culpable as they lack free will and hence their action and intent may not concur. The latter expresses the legislative intent behind section 84 with greater specificity. Macaulay’s Draft Code, which preceded the 1860 IPC, vide clauses 66 & 67 resonated this principle by establishing states of idiocy and lunacy as general exceptions(18). Acquittal on grounds of insanity is founded in that persons insane in the eyes of the law, lack the free will to be capable of the guilty intention that concurs with their actus reus. Now, that I have established the standard of legitimacy for any law on insanity, I will begin to solve the shortcomings enumerated in the earlier half of this paper, by adhering to any proposed reform to these basic foundations of this defense.

The Rajasthan HC, in Vidhya Devi v. State of Rajasthan (2004) (19) decreed what is arguably among the most beautifully authored judgment on insanity. Not only does it promise natural justice for the schizophrenic accused, but in that it also laid down multiple supplementary rules for section 84. In paragraph 28, SK Garg, J, stated-

“28. Apart from this, there are certain principles to be borne in mind before applying Section 84 IPC and they are as follows: 

(a) every type of insanity is not legal insanity; the cognitive faculty must be so destroyed as to render one incapable of knowing the nature of his act or that what he is doing is wrong or contrary to law;”(20)

The Court laid down that in a case of insanity the accused’s cognitive faculties must be destroyed. Implicitly, his Lordship replaced the term “unsoundness of mind” with the destruction of cognitive faculties, when contrasting this extract with section 84. Cognitive faculties may be defined as “a specific aspect or domain of mental function, such as language, object recognition, or face perception.” (21) Other cognitive faculties, may include sense, understanding or reason. Earlier, the Madras HC had also placed a similar idea in jurisprudence (22). Paragraph 31 (extracted below) will show that the court considered the last of these faculties mentioned to be of pertinence to the insanity defense, i.e., reason.

“31. To establish a defense on the ground of insanity it must clearly be proved that at the time of committing the act, the party accused was laboring under such a defect of reason, from the disease of the mind, as not to know the nature and quality of the act he was doing or if he did know it, that he did not know he was doing what was wrong or contrary
to law” (23)

In essence, the High Courts of Madras and Rajasthan established that the destruction of the cognitive faculty of reasoning is essential to section 84. One may only lack the requisite mens rea to commit a crime, or not have free will over their actus reus, should they be completely unable to reason. This definition prescribes a complete as opposed to partial impairment. The latter is something that average humans may suffer from and must not stand as a ground for criminal absolution.

While the statutory exercise of developing objective judicial criteria and the subjective nature of psychiatric assessments necessitated by the insanity defense are two competing imperatives to the criminal justice process, they must be balanced on a tightrope. The reality is that a statutory restriction on the insanity defense can only achieve so much with a ground for criminal absolution as complex as insanity. This paper proposes that the subjectivity is not diluted altogether, by vesting importance in qualified psychiatric professionals, u/s. 45 of the Indian Evidence Act. Leaving this subjectivity open, vide an explanation to the provision, also enables legislative bodies to account for the evolving nature of the human psyche and psychiatric evaluations. The methods and standards used to evaluate a lack of intention today may change with brain development tomorrow. Both clinical psychology and academia possess the resources and have the capability to provide courts with the objectivity, to transcend with time, as psychology evolves.

Revisiting the standards of legitimacy established – that the insanity defense is founded on that an insane person lacks free will (‘furiosi non voluntas est’) and that criminality may not be established without a guilty mind (‘actus non facit reum nisi mens sit rea’), it is clear that when “unsoundness of mind” is narrowed down to a complete impairment or destruction of the cognitive faculty of reasoning it represents the essence of the insanity plea. Further, this definition also addresses the policy-centric issue of wastage of courts’ time with bogus cases of insanity, for instance, those founded on mere depression. The fact that depression can not fulfill the criteria under this reformed stipulation for the insanity plea, in that it does not destroy reasoning is prima facie evidence. It also more closely represents the consequences elaborated in the latter half of the section. Therefore, it is proposed that the phraseology of section 84 be altered as follows.

‘84. Act of an insane person. —Nothing is an offense which is done by a person who, at the time of doing it, by reason of complete impairment or destruction of the cognitive 7 faculty of reasoning, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

Explanation: To establish this defense, qua the law of evidence, expert psychiatric opinion as envisaged under section 45 of the Indian Evidence Act must be presented to substantiate the insanity plea.’