A Plea for accommodating the genuine irresistibility.
The human brain is ever evolving and in fact can be said to be among the list of
fast evolving things on the planet. Human minds continuously evolve and
differentiate what things they should do for their betterment and what not.
Sometimes some of them fail to do so when their brain is not in a sane state
i.e. they are in an insane state.
In India, S. 84 of the Indian Penal Code defines the defense of Insanity which
pardons an act done by a person of unsound mind if he/she at the time of
commission of that act was incapable of knowing the nature of act, or that what
he is doing is either wrong or contrary to law." To get exemption from
liability the accused must establish the above conditions.
These conditions imply that the accused's mental illness should be of the level
that it could not distinguish his own actions which in my view is a very narrow
understanding of insanity. This section is drafted on the basis of M'Naghten
Rules which were framed by a jury way back in the 1840s in UK courts. Many
countries have ceased to follow these rules or amended.
The time has come for India to revisit these old rules to widen the scope of
Legal Insanity. With the passage of time and development of the human race
various mental conditions have also come forward which our old present statute
fails to identify some genuine mental insanity like volitional insanity
(Irresistible Impulse) of certain accused which in my view should fall under
purview of S. 84 by expanding its scope to meet the objective behind which this
section was framed.
This paper will focus on how some accused who lacked mens rea still were
convicted because they were able to identify what is right and what is wrong but
their mental condition prevented them to control their acts. The paper will
argue to convert this medical condition of irresistible impulse to legal
insanity as it does not fulfil the conditions laid down by ancient law. We will
also look at the aspect of how courts can take a liberal view towards such
accused as this mental condition is difficult to prove in the court.
The present M'Naghten rules are largely criticised by number a of medical
practitioners/scientists, eminent lawyers and academicians because it only takes
into account the ability to distinguish the right and wrong of the person
claiming relief under insanity i.e. only cognitive defects. Insanity is a very
wide concept which not only affects these cognitive faculties but also affects
the emotions and ability to control the act done by the person in an insane
state. In a way insanity affects his/her whole personality and various serious
conditions of insanity give emotional currents which can lead to the commission
of certain acts which the person cannot control.
In Ambi v State of Kerala
 it was held that for an act to constitute a
crime it must be done with guilty mind. But S.84 of IPC fastens criminal
liability on a person who did not possess requisite mens rea or free will just
because he/she could not qualify the right/wrong test. Therefore, S. 84 is in
violation with the common standard set by criminal jurisprudence to determine
Before I argue further about widening the scope of the defence and including
irresistible impulse in the framework we make it clear that we are not arguing
for the cases where accused claims insanity for acts committed out of delusion,
social evils and fear or anger which is way graver in nature. For example in
the case of Muhammad Husain v. Emperor
, accused out of anger killed
her wife as he found her with his father and then claimed the defence but court
rightly convicted him.
In the case of Queen v. Bishendharee Kahar
 court rightly convicted the
accused who under delusions of superstitions sacrificed her son and believed
that her son would come back after 3 days with the blessings of the deity. Even
though he had no mens rea to kill his son, but acquittal would promote such
superstitions in the society and thus court convicted the accused who claimed
the defence of insanity for such an act. Similarly in the case of Karma Urang v.
Emperor, the accused killed his father because Goddess Kali ordered him in
his dream that you have to kill your father otherwise he may kill you. We only
want that some genuine mental conditions should be covered.
The outdated approach of M'Naghten rules to insanity has been amended by some
countries and various committee reports, law commission reports, pronouncements
of various courts across the world etc. have urged for the same. Courts in
Ireland through its judicial pronouncements have time and again suggested and
observed that there is no reason to not include volitional insanity as a defence
in criminal law.
For example in the case of People (Attorney General) v. Hayes, Justice Henchy
said that, the defence of insanity is available to a person whose mental
disorder prevents him from exercising a free volition as to whether he should or
should not do that." Similarly the Supreme Court of Ireland took the same
view to entitle psychopath for the defence who had difficulty in controlling
their violent desires in People (DPP) v. O'Mahony.
The Royal Commission on Capital Punishment (1949-53) in their report in their
report recommended to widen the scope of M'Naghten Rules, "The jury must be
satisfied that, at the time of committing the act, the accused, as a result of
disease of the mind or (mental deficiency), (a) did not know the nature and
quality of the act or (b) did not know that it was wrong or (c) was incapable of
preventing himself from committing it."
This report in 1953 suggested to include the capacity to control the act and no
other mental conditions and thus the time has come in India to do away with
right-wrong test and widen the scope of insanity. England, the country where
these rules were born, is on the verge to widen their scope by adding volitional
insanity in the present rules.
It's draft criminal code states, "A person is not guilty of an offence if � (a)
he acts in a state of automatism, that is, his act � (ii) occurs while he is in
a condition (whether of sleep, unconsciousness, impaired consciousness or
otherwise) depriving him of effective control of his act."
There are some jurisdictions in commonwealth nation which, after deliberate
consideration, have included condition of irresistible impulse in the defence of
insanity because of these following two reasons: First, it would be morally
wrong to punish someone who is not at fault for acts committed as a result of
their mental compulsion.
Second, empirical research and advancements in psychiatry show that mental
illness can impair a person's ability to control their actions in accordance
with the law even though they are conscious about it. Legislative amendments
have been made in this regard in South Africa and the State of Queensland in
Australia where an accused is not held criminally liable once the opinion of
the expert suggests that there are chances of the accused having suffered from
heavy emotional current due to which he lost control over his own conduct.
The International Criminal Court of which various countries across the world are
its members has its own statute which also has the section on defence of
insanity. It reads as: "[A] person shall not be criminally responsible if, at
the time of that person's conduct the person suffers from a mental disease or
defect that destroys that person's capacity to appreciate the unlawfulness or
nature of his or her conduct, or capacity to control his or her conduct."
Even an international court who need consensus of many member nations recognizes
irresistible impulse as a defence. The International Criminal Court is the court
which adjudicates the cases of graver nature and still holds a liberal view for
Now, let's discuss how narrowness of Section 84 IPC is not allowing the courts
in India to follow the directions or observations of the Supreme Court of India,
topmost binding authority as to not deviate from right wrong test of the Section
84. The point of conflict is where the genuine cases of irresistible impulse
fall prey to the narrowness of law.
As we know that to establish a plea of insanity the onus is on the accused to
prove that he was/is an insane person. But Indian Courts in the series of
judgement have told that accused has to only prima facie suggest the possibility
of him/her being an insane and then the onus shifts to the prosecution to
establish the guilt and inapplicability of the defence.
In the case of Dahyabhai Chaganbhai Thakker vs State of Gujarat
supreme court of India laid down that from the evidence presented to court by
any party if accused is able to raise a reasonable doubt of his insanity and not
proving it conclusively beyond reasonable doubt, he is still entitled for an
acquittal as prosecution afterwards did not establish the guilt and discharge
its general burden of proof.
The Orissa High Court in the case of Butu @ Madhua Oram vs State
followed the same course as the Supreme Court and observed that to be acquitted
from criminal charges, the accused is not required to establish each requirement
of Section 84 of the IPC beyond a reasonable doubt. However, it is sufficient if
the pieces of evidence support the hypothesis that Section 84 requirements may
We have many cases where the conduct of the accused, expert evidence, doctor's
opinion, other evidence etc. favoured accused and created a doubt for insanity
but still courts deviated from the observation of Supreme Court in Dahyabhai
because it was accused who could not satisfy all the conditions of Section 84.
Following are some genuine cases of insanity which deserved acquittal because
doubt of insanity was established but acquittal was denied because they knew the
nature of the act but could not control their act:
In Queen-Empress v. Lakshmana Dagdu
, the Bombay High Court wanted to
acquit the accused who was reasonably an insane in their view but could not
acquit due to constraint which Sec. 84 put on them and observed that even though
doctors supported the accused mental condition and just because it was a wrong
committed out of irresistible impulse court could not grant acquittal as it
wasn't enough to fall under the purview of narrow scoped Sec. 84 IPC.
Similarly in State of Kerala v. Ravi
 trial court acquitted the
accused because he had no motive to kill the victim but it was irresistibility
which made him do that. Trial court also took into consideration all other
evidence while acquitting him but his acquittal was revered by the high court
only because it did not fall in the purview of Section 84.
The Supreme Court in Brij Kishore Pandey vs State of Uttar Pradesh
reduced the punishment to imprisonment for life from death penalty when plea of
irresistible impulse was raised. Therefore we can say that even courts in a way
were open to some amendments in this regard as it took cognisance of
Due to all the above reasons we proceed to request the Supreme Court of India to
take cognizance in this regard if the legislature still remains silent on this
issue. India also need changes and this amendment of including irresistible
impulse in insanity defense is already bought in other countries as discussed
above and there was no miscarriage of justice noticed due to this change. We
don't want more innocent people like Lakshmana Dagdu to be punished who were
favoured to be acquitted by expert psychiatrists and doctors.
- The Indian Penal Code, 1860.
- R. v. M'Naghten (1843) 10 Cl & F 200: 8 ER 718.
- K.M. Sharma, 'Defence of Insanity in Indian Criminal Law' (1965) 7(4)
Indian Law Institute.
- Ambi v State of Kerala (1962) CriLJ 135.
- K.M. (n 3).
- Muhammad Husain v. Emperor (1913) 14 Cr. L.J. 81.
- Queen v. Bishendharee Kahar (1867) 7 W.R. 6.
- Karma Urang v. Emperor A.I.R. 1928 Cal. 238.
- Stanley Leo, 'The Incapacities of Insanity' (2001) 36 Irish Jurist.
- People (DPP) v. O'Mahony (1985) IR 5.
- K.M. (n 3).
- Stanley Leo, 'Penal Code Defences: Lessons from Sri Lanka' (2017) 86
- Soumya AK, Maitreyi Misra & Anup Surendranath, 'Shapeshifting and
Erroneous: The Many Inconsistencies in the Insanity Defence in India' (2021)
14 NUJS L Rev 1
- Stanley Leo, 'The Insanity Defence In The Criminal Laws Of The
Commonwealth Of Nations' (2008) Singapore Journal of Legal Studies.
- Debashree Saikia, 'Insanity Defense in Criminal Law in India' (2018) 1
Int'l JL Mgmt & Human 24.
- Dahyabhai Chhaganbhai Thakker vs State Of Gujarat (1964) AIR 1563.
- Butu @ Madhua Oram vs State (1985) II OLR 398.
- Queen-Empress v. Lakshman Dagdu (1886)10 ILR Bom 512.
- State of Kerala v. Ravi (1978) KLT 177.
- Brij Kishore Pandey vs State of Uttar Pradesh (1971) 3 Supreme Court
Cases 931 (2).
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