Insanity- A Real Defense Or A Loophole?

Insanity- A Real Defense Or A Loophole?

Aliza Abdin_JudicateMe


This Blog is written by Aliza Abdin from Integral University, LucknowEdited by Naina Agarwal.



The most fundamental concept of the judiciary is to provide justice to the aggrieved person and punish the wrongdoer. But if the wrongly accused is punished for a crime that he did not commit, it would be a violation of the basic human right that is guaranteed to all citizens of the country by the Constitution of India. An accused person must be given a chance to defend himself in court, according to the principle of natural justice. An accused person must have all the defense tools at his bay.

“Insanity Defence” is one such defense tool of the Indian Legal system that excuses mentally ill offenders who proved that they were incapable of understanding the nature of the crime and did not have guilty intentions. The insanity law seeks to defend such persons who do not have a rational understanding of their misconduct at the time of the commission of a crime. It must be noted that the insanity defense is a legal concept and it does not refer to mental disorders like mental illness. A person must prove his insanity in court to take defense. The burden of proof falls on the accused to prove his insanity.

Section 84 of the Indian Penal Code, 1860 states the defenses available to a person of an unsound mind. It is common knowledge that an insane person is prone to exploitation and must be protected, often many such people are manipulated into theft and drug smuggling without them knowing that their conduct is a violation of the law. Thus, the defense of insanity protects a person who does not have a guilty mind.

In recent years, there has been a tremendous increase in the misuse of defense of insanity which has led the courts to take it as an excuse rather than a justification of facts. Many U.S states such as Montana, Idaho, and Kansas have banned the insanity defense. This has raised much speculation among scholars around the world.


The insanity defense, commonly known as the mental disorder defense refers to a tool of criminal defense wherein a person agrees that he has committed the crime but pleads not guilty for his actions due to an episodic or persistent psychiatric disease at the commission of the crime. The accused on successfully proving his insanity is then excused for his crime and is declared not responsible for his actions on account of lack of mens rea and his incompetence in knowing whether his actions were right or wrong.

Section 84 of the Indian Penal Code, 1860 describes what is commonly known as the Law of Insanity. Under this section, a person of unsound mind is protected and given defense from criminal liability on the assumption that an insane person has no guilty mind and does not know if the crime committed by him is prohibited by the law.

People of unsound mind are vulnerable to manipulation and are often used as pawns in big gang crimes. The Insanity law proves to be significant in the protection of innocents from being wrongfully convicted. The law seeks to understand the mental position of an insane person and grants them immunity from criminal charges.


The origin of Laws of Insanity dates way back, it has been prevalent in ancient Greece and Rome as part of man-made laws. Even in older civilizations, evidence has been found that people of insane minds were not convicted of severe punishment but were rather given a more rehabilitated environment.

The very first ever recorded case of Insanity Defence dates back to 1581 English legal treatise where if a lunatic murder someone then he or she will not be held accountable for the crime because of unsoundness of mind. After this, many states in many countries enacted different laws in different ways as a defense to insanity, all of which were significant to the then society.

A breakthrough in the laws of insanity was after the development of jurisprudence in the British courts in the 18th Century. The Hon’ble Courts of the Country came with the concept of the “Wild Beast” test by the feature of which a defendant was not to be convicted if he had an understanding of an infant or a wild beast. After this test was implemented, it marked the first formal enactment of the insanity defense that later proved to be the foundation of all laws of insanity.

After the success of this test, various other tests like the “Insane Delusion test” were conducted to make sure whether the person is legally insane as in the Good and Evil test where the person accused of a crime had to be checked if he was capable of distinguishing between good and evil.

All these tests paved the way for the most fundamental test that proved to be a landmark in the foundation of insanity laws all over the world. The test as known to many is the McNaughton Test. In the famous case, R v. McNaughton, the English Courts formulated the McNaughton’s Test. In this case, a man named McNaughton murdered Edward Drummond who mistook him for some other person and killed him. It was proved in the court that his state of mind was insane and therefore he was acquitted. After his acquittal, he was admitted to a Mental Asylum because of his insanity.

After this judgment, in 1843, the House of Lords concluded, and a five-point long proposition was made known as the McNaughton’s rules.

The proposition is as follows:

1) That it is to be presumed that a convict is sane until the contrary is proven.

2) That an insane person would be liable for punishment if he/she knows at the time of the commission of crime what he/she is doing.

3) To establish a defense on insanity, the accused by way of his/her insanity should not be in a position to know the nature and consequences of his/her act.

4)  That the delusions to which the accused is suffering should be real.

5) The jury in English Law is responsible for deciding if someone is insane or not.

This judgment is a landmark and is formed as the base of present-day laws on Insanity. Section 84 of the Indian Penal Code, 1860 is based on McNaughton’s rules.


The laws relating to Insanity in India are defined under section 84 of the Indian Penal Code, 1860. The entire section is solely based on McNaughton Rules. According to Section 84 of the Indian Penal Code, 1860, “Nothing is an offense which is done by a person who, at the time of doing it, because 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.”

Section 84 of the Indian Penal Code, 1860, symbolizes the fundamental maxims of criminal jurisprudence and makes provisions on Unsound Mind based on these maxims; these are as follows:

Actus Non Facit Reum Nisi Mens Sit Rea“: This Latin maxim simply means that an act does not constitute guilt unless done with a guilty intention. The intent and the act must both concur to constitute the crime.

Furiosi nulla voluntas est“: This Latin maxim states that a mad man has no will. That means that a person with mental illness has no free will.

Thus, this section clearly states that there is no criminal liability on persons with insanity or unsound mind as they have no rational thinking and are incapable of knowing the nature of the act. People with an unsound mind lack the required guilty intention. It must be noted that under this section, the proof of insanity is not enough for defense; it should be proven that the person was insane at the time of the commission of a crime.

Even if the accused knew the nature of the act, it must be proven that he did not know that it was prohibited by the law, and his intentions were not guilty. Therefore, it’s impossible to convict a person without a clear mens rea.


Over the years, many cases relevant to the insanity defense were heard and judgments were pronounced, some of them are given below.

Kamala Bunia v. State of West Bengal:

The accused was on trial for the murder of her husband with an axe, she did not attempt to flee from the scene of a crime or to remove the weapon of murder. A suit was filed against her and she alleged to be insane at the time of the incident. Lack of presence of mens rea at the time of the commission of the crime and lack of rational thinking proved her to be insane. She was acquitted under Section 84 of the Indian Penal Code, 1860, and proven to be of unsound mind.

Hari Singh Gond v. State of Madhya Pradesh, 2008 [1]:

In this case, the Hon’ble Supreme Court held that “Section 84 of IPC lays down the legal test of responsibility in cases of alleged unsoundness of mind. The courts have, however, mainly treated this expression as equivalent to insanity. But the term ‘insanity’ itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every mentally diseased person is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity.” Thus, it is clear that a court has to consider legal insanity and not medical insanity, and the two terms are very different.

Etwa Oraon v. State of Uttar Pradesh, 1960:

In the following case, the High Court of Patna, stated that to take insanity defense under Section 84 of the Indian Penal Code, 1860, the mere likelihood of the accused being insane is not enough, it must be proven in court that the accused was insane at the time of the commission of the offense. And then can the accused establish the type of legal insanity as stated in Section 84 of the Indian Penal Code, 1860.

Chellathurai v. The State (Madras), 2012 [2]:

The High Court of Madras, in this case, held a critical point of time and decided whether the defense of section 84 should be given or not when such an offense occurs. It concluded that it would be dangerous to admit the defense of insanity upon arguments derived merely from the character of the crime.


There are two sides to every coin, and thus we should look at both sides. The insanity defense has both positive and negative aspects of its applicability. Just as it is a fundamental tool of defense for legitimate and genuine cases for people who have an unsound mind, it also has a high vulnerability of being exploited.

Positive Aspects

The most significant feature of Insanity defense remains the fact that it is relevant for genuine cases concerned with someone with mental issues. Without the defense of insanity, legitimate cases that need such criminal defense tools will be hard to judge.

The defense is also important to provide aid to insane people and save them from capital punishment, a person suffering from some mental illness who has already confessed to the crime is incompetent to understand the severity of the situation and thus is subjected to capital punishment would be unjustifiable.

The insanity defense is highly crucial in a country like India where a person if convicted is regarded as an evil human being. A mentally challenged person takes this second chance as a “life-giver” and therefore, it plays an important role for mentally challenged people who have been exploited.

Negative Aspects

In recent years, many countries such as Germany, Argentina, and Thailand have abolished the law of insanity because of the wide range of exploitation. Just like any other law, the insanity defense has also witnessed tremendous misuse in the hands of criminals who get an acquittal on grounds of false insanity. It puts down the entire foundation of the law.

Section 84 of the Indian Penal Code, 1860 puts the burden of proof on the accused; a person has to prove that he was legally insane at the time of the commission of the crime. Medical insanity and legal insanity are two different concepts and it is hard to prove that a person was legally insane at the time of the commission of the offense. This is a burdensome task for the accused especially when he is mentally challenged. Thus, in legitimate cases of insanity, the accused although insane are unable to prove legal insanity and is charged and punished.

There have been several instances where an accused proved that he was mentally unstable at the time of the crime. The defense of insanity is prone to misuse and it falls on the forethought of the judge to decide a case.


The defense of insanity remains from centuries as the most popular tool of defense to exempt oneself from possible criminal liability. Even though it is impossible to prove a person’s insanity at the time of the commission of the crime yet psychiatrists make it possible.

Section 84 of the Indian Penal Code, 1860 distinguishes between medical insanity and legal insanity of a person, but a psychiatrist is concerned with the medical treatment of individuals. Courts need to make decisions for the best interest of society and protect the citizens from possible danger. Courts cannot pronounce the verdict based on emotions and need to be foresighted.

The Section has received tremendous criticism and is regarded as a loophole in the judicial system. It also makes the decision of whether the accused deserves the defense or not highly challenging. Modern times have seen a rise in the cases of false use of the defense. To restore the original zeal of the law, it should be amended and defense of automatism should be included as in the English criminal law system.

New times appeal for newer tests and laws. Better and more innovative tests should be implemented to check the unsoundness of an accused person’s mind.


[1] Hari Singh Gond v. State of Madhya Pradesh, (2008) 16 SCC 109.

[2] Chellathurai v. The State (Madras), MANU/TN/0236/2012.

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