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Necessary or Discriminatory? The Defence of Unsoundness of Mindin light of the Convention on Rights

Rehan Mathur


Insanity Defences around the world have existed for long, based on the principle of excusing individuals whose mental illnesses deprived them of rational conduct at the time of the crime. However, some scholars have argued for the abolition of insanity defences and incompetency statutes relying upon the Convention on Rights of Persons with Disabilities (CRPD). According to them, such defences take away the personhood of the mentally ill and lead to unjust deprivations of liberty. This article engages with these demands by analysing them in the context of a holistic reading the CRPD and consequentialist implications of removing such provisions in the Indian Criminal Justice System. Ultimately, the paper concludes that calls for abolition are not qualified either principally or pragmatically in the socio-legal realities of the Indian Criminal Justice System and because they violate other key provisions of the CRPD.


One of the fundamental premises of culpability in modern Criminal Law is that individuals are blameworthy not just because they cause harm, but because they enjoy the freedom to choose between alternative courses of actions, they have chosen to do a proscribed act. An individual is morally responsible for their actions if they have the ability to choose or control their actions.[1] This premise forms the basis of insanity defences around the world seeking to excuse those whose mental illnesses deprived them of rational conduct at the time of the crime. Insanity defences have existed in the Anglo-Roman common law for about 700 years[2] with a variety of tests for the determination of insanity such as the ‘Insane Delusions Test’, the ‘Wild Beast Test’, among others.

Even though this defence has existed since time immemorial in different forms in many countries including India, recently, there have been calls for its abolition. Such calls are rooted in the Convention on the Rights of Person with Disabilities (CRPD). The CRPD seeks to bring about a radical change in viewing persons with disabilities as subjects with equal rights and capacities and not as objects of charity and protection. It has brought about a social model of disability imbibing in itself principles of non-discrimination, autonomy and inclusion. Relying upon Articles 12 and 14 of the convention and their General Comments, some scholars have called for revision or abolition of defences based on mental incapacity to be replaced with disability-neutral doctrines. India ratified the CRPD in 2007 and thus has an obligation to follow its principles.

Through the course of this article, the author seeks to engage with the arguments of abolition of the insanity defence specifically in the Indian context. The author would then argue, based on a holistic reading of the CRPD that, calls for abolition of the Insanity defence are unqualified and cannot sustain either principally or pragmatically given the socio-legal realities of the Indian Criminal Justice System and violation of other articles of the CRPD by such abolition. However, the author finally concludes by seeking to reconcile these two positions by calling for different capacity standards along with certain changes to the current conception of the insanity defence in India and proper implementation of certain ancillary measures.

The CRPD, the Insanity Defence and Legal Capacity

Article 12 (Equal recognition before Law) of the CRPD lies in the middle of this controversy surrounding the insanity defence. Article 12 ensures states recognize persons with disabilities as persons before the law, having legal capacity on an equal basis in all aspects of life. States are obliged to provide adequate measures to support persons with disabilities in the exercise of their legal capacity.[3] Disability or mental incapacity cannot be grounds for limiting the capacity of individuals to bear rights and duties under law. The defence of these rights, exercised with a consequent assumption of liability forms the core of this Article.[4]

Implications on Legal Personhood

The problem arises when, as Tina Minkowitz points out, “this capacity extends to all aspects of life where decisions have consequences, and implies as a corollary the legal responsibility for those consequences on an equal basis with others.[5] Equal legal capacity of individuals with mental incapacities is restricted by virtue of the Insanity defence by not holding them responsible.[6] Such a restriction has implications on the personhood of such persons and involves a failure to view them as human beings with moral agencies.[7] This makes individuals with mental incapacities morally unequal from others[8] and has a trickle-down effect on the effective participation of individuals in society. Angela Smith further goes on to say, “It is to regard a person as we would regard a vicious dog or a bratty toddler … not someone with whom it is possible to enter into relationships of mutual respect and recognition”. The equality espoused by the CRPD would require all individuals, including the mentally ill to be answerable for what they have done. A criminal justice system with any form of insanity defence would be socially exclusionary in nature and thus, mental capacity assessments which deny culpability violate the CRPD. This argument finds support in the annual report of the United Nations High Commissioner for Human Rights on article 12 of the CRPD as well.[9]

Another problem that Christopher Slobogin points out is of the stigma attached because of being declared ‘insane’ or mentally unsound by a court, that perpetuates myths of individuals with mental illnesses being dangerous or lacking self-control. Such myths have a detrimental effect to the inclusion of individuals in society and their equal personhood which can be empirically seen as well.[10] Research has also displayed how potential pleaders of the insanity defence would often choose to plead guilty and face incarceration, to avoid facing the stigma of having been found ‘criminally insane’.[11]

Deprivation of Liberty

Article 14 of the CRPD also has implications on the personhood of the mentally ill. This article seeks to ensure individuals are not deprived of their liberty unlawfully/arbitrarily, and that any deprivation is in accordance with law. Disability cannot be a reason for such deprivation.

Civil commitment provisions exist in many jurisdictions and have been used for years for depriving the mentally ill of their liberty against their will by virtue of involuntary hospitalizations, institutionalization, etc. In the Indian context, section 335 of the Code of Criminal Procedure (CrPC) appears problematic as it allows magistrates to either order for the detention of individuals proved to be of unsound mind in safe custody (usually prisons or mental health institutions) or for the individual to be delivered to any relative or friend contingent upon some conditions mentioned in section 335, clause (3).[12] Such provisions, rely upon mental disability in the determination of deprivation of liberty, something falling foul of the CRPD.[13] In totality this displays a double discrimination. On one hand it holds the mentally ill unequal in the Criminal justice system and on the other it simultaneously imposes control measures regarding detention on the basis that this population cannot be dissuaded by regular punitive responses.[14]

Interpreting the CRPD Holistically

To critically engage with the abolitionist demand, we must carefully analyse how Article 12 has been interpreted. Is such an interpretation in the best interest of the mentally ill when the CRPD is read holistically? It is seen that abolitionist arguments appear fixated with only two articles of the CRPD and ignore other provisions of the CRPD which in fact support the existence of the Insanity defence. While the concerns highlighted by the abolitionists are very real, it is seen that abolishing the insanity defence is not the correct method to achieve those goals either principally or pragmatically.

Equality, Non-Discrimination and Justice under the CPRD

The first concern to be addressed is whether the interpretation of Article 12 obligates states to treat all individuals in the same way before law. It must be noted that such a regime itself would aim to treat individuals with mental disabilities identically with those without such disabilities by providing them access to only defences available to persons without such disabilities.[15] This is problematic because these defences (such as duress or self-defence) have not been created keeping in mind mental disabilities or the unsoundness of mind. The abolition of insanity defence for such a vulnerable group would itself be discriminatory, as it would lead to their being judged against the standard of a person not so affected. This would be inappropriate due to depriving them of benefits they would otherwise be entitled to.[16]

Article 5 para 4 of the CRPD bolsters this when it says, “specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination”.[17]Given that other defences cannot adequately address the concerns of the mentally unsound, the insanity defence cannot be thought to be as discriminatory on the sole ground that it negates criminal responsibility because of mental/intellectual disability. This claim is further scrutinized as the insanity defence is not just used by those with an unsoundness of mind but has been used in the UK and India by those with physical illnesses which can hamper the mental functioning of individuals such as epilepsy, hyperglycaemia.[18]

The conception of equality under Article 12 is also problematic. How can scholars assert that the denial of specific legal capacities in certain predetermined situations (in the case of Section 84, the lack of capacity to understand the nature of the act and whether the act was wrong or contrary to law) be interpreted as a lack of personhood? For example, restricting the right of a blind individual from driving a conventional car (with no additional features for guiding a blind individual) does not affect their personhood before the law or affect their other human rights. Such a restriction is needed for protecting the interests of that individual and others and such an individual may still enjoy the right to marry, form contracts, make wills, etc. It would be impractical to say that denial of legal capacity in some cases due to mental capacity would always constitute discrimination against the mentally ill. Denial of some capacities for specific purposes may be allowed and even necessary to implement the obligations of this very convention which shall be dealt with in the second part of this section.

If section 84 were to be read down, the criminal justice system would be holding individuals culpable who are in fact not responsible for their actions. This violates a fundamental tenet of criminal law. Such individuals should not be punished since they did not have the rational and moral capacity at the time of the offence. It is not fair to hold individuals responsible for such factors and they do not deserve such punishment. The concept of equality does not signify treating individuals identically dure to fear of discrimination. It should rather acknowledge specific needs and considerations.

Interestingly, scholars have pointed out that one of the fundamental reasons for punishment is deterrence which has little to no effect on individuals with unsoundness of mind.[19] Such individuals by virtue of not being able to understand the nature of their actions (and the potential penal consequences which might follow) and that such actions are wrong or contrary to law, are not deterred by punishment. It is much more likely that a mentally ill individual will not receive the requisite care in the prison system and likely be a risk to themselves and to others. If the purpose of punishment is not achieved, what is accomplished by holding the mentally ill culpable?[20]

Consequentialist Implications

Even though abolitionist arguments are principally dubious, such arguments would also have tremendous real-life consequences, especially in the context of the Indian justice system. Many scholars have argued that abolitionist calls completely ignore how mentally ill prisoners are treated in the prison setting, and are likely to be exploited by prison authorities and fellow prisoners even more with the abolition of the insanity defence.[21]

Furthermore, the question of stigma and unjust deprivations of liberty, both arising from mental capability defences are actually faults of the post-insanity-defence-acquittal case disposition and institutionalization system.[22] Addressing stigma first, it is clear that stigmatisation of mentally ill individuals is a social response to mental illness in general and not a consequence of the insanity defence itself. The answer might lie in social and attitudinal change towards mental illnesses rather than in legal change. Stigmatization of individuals pleading insanity is something to be tackled, however, it would be more unfair to hold individuals culpable even if they are not blameworthy till a better alternative is found, just to avoid stigma .[23] Retention of the defence might turn out to be a lesser of two evils. However, appropriate measures aimed at removing the taboo surrounding mental illness, must definitely be taken to address this problem.

To understand the ramifications of holding mentally ill individuals culpable, we must analyse the conditions of mentally ill convicts in the Indian prison system. It is an open secret that the prison system of India is severely overcrowded and inadequate. To top this fact, prisoners (both convicts and undertrials) with mental illnesses are the most vulnerable population exposed to torture, abuse and violation of rights. In Veena Sethi v. State of Bombay[24], the Supreme Court found that several insane acquittees had been languishing in jails, detained for over twenty years. The court ordered the immediate discharge of the said individuals. Several undertrials whose trial was postponed by virtue of unsoundness of mind (Indian incapacity provisions; Sections 328, 329 of the CrPC) were found to have been detained for an appalling total of 19-37 years. The confinement of insane undertrials even after gaining sanity was observed to be violative of their fundamental rights under Article 21. Finally, the court observed that the “practice of sending lunatics or persons of unsound mind to the jail for safe custody is not at all a healthy or desirable practice, because jail is hardly a place for treating those who are mentally sick”.[25] The practice of housing mentally ill persons in jails instead of psychiatric institutions (which will happen if the insanity defence is abolished) would fall foul of Article 21 of the Constitution.

A study from 2014 empirically supports the high incidence of psychiatric morbidities present in the Indian prison population. [26] Prison environments are stressful, with usually little to no facilities to deal with the mentally ill due to which many illnesses go untreated. Given the poor lack of adjustment in the prison environment, the study found that about 47.1% of participating prisoners developed Substance Use Disorders (SUDs) along with other illnesses like Antisocial Personality Disorder (ASPD), Adjustment Disorders and are at high suicide risk. Such vulnerabilities are also experienced by death row prisoners who show high rates of anxiety, distress, suicidal ideation, sleeplessness and other illnesses as well.[27] This displays the aggravation of mental illnesses of the already unsound prisoners as well as the possibility of onset in the high-risk prisoners due to isolation from support systems, strictly controlled environments and abuse from prison authorities. As research from NIMHANS points out, such mental health and substance abuse concerns can have a detrimental impact on the physical health of the prisoners as well in the form of HIV, respiratory illnesses, etc.[28] Therefore, it is clear that the Indian prison system is not a place for the mentally ill, rather it is more likely to lead to their exploitation.

Understanding the consequentialist implications of removing the insanity defence goes on to prove that other articles of the CRPD will be violated if such a position is adopted. State parties are obliged to respect the inherent dignity[29] and difference of persons with disabilities as part of human diversity[30], both of which clearly go out of the window with such a rigid interpretation of Articles 12 and 14. Furthermore, the troika of rights mentioned in Articles 15,16 and 17 are completely desecrated given the conditions of incarceration in prison and mental health institutions will lead to the cruel, inhuman, degrading treatment of the mentally ill[31] leading to exploitation, abuse[32] and a lack of protection of the integrity of such individuals.[33]

Lastly, the retention of the Insanity defence in the Indian context finds support in Article 4, para 4, which provides that nothing in the convention would affect any provisions currently employed which are more conducive to the realisation of rights of the mentally ill.[34] It is clear that both in a principled and pragmatic sense, the insanity defence must remain in the statue books.

Reconciling the CRPD and the Insanity Defence

After establishing the need for the retention of a defence of insanity, we must try to reconcile the CRPD and the insanity defence. Conceptually speaking, this may be possible by having different standards of legal capacities for culpability and the right to make one’s own personal decisions.[35] Such an amalgamation would not only allow for greater autonomy, dignity in the personal sphere (making contracts, inheriting property, marriage, etc.) for mentally ill individuals but also protect them from persecution and abuse ingrained in the criminal justice system. Recognizing legal personhood in the insanity defence context is much less important than maintaining principles of equality and fairness in not holding morally irresponsible individuals criminally responsible. It is already established that Article 12 mandates equal treatment and not identical treatment.

This position in the Indian system is somewhat already present. With legislations such as the Right of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 provisions mandating the dignity and equal rights of the mentally disabled exist in the form of supportive decision making, advance directives, access to reproductive and voting rights and the right to own, inherit property at least in theory. With such provisions, an insanity defence could exist without compromising on the ideals of the CRPD. However, the author does not in any way seek to defend the current interpretation of Section 84. Section 84 is outdated and still gives credence to archaic conceptions of mental illness with little to no clarity on what actually constitutes ‘unsoundness of mind’.[36]

To address some of the concerns raised by the abolitionists, the Indian criminal justice system needs to let go of liberty depriving civil commitment provisions such as Section 335 of the CrPC, a provision under which a person with an unsound mind may be incarcerated against their choice for the ‘security of the society’ and has a propensity to discriminate against the socio-economically marginalized.[37] Not just this, affirmative provisions such as sections 31(2) and 103(6) of the Mental Healthcare Act providing for training of medical officers in prisons in immediate mental health care and establishment of mental health establishments in the wing of at least one prison in the state respectively need to be effectively implemented. Such steps would make the insanity defence paradigm much more amenable to Article 14. Furthermore, other provisions providing for independent admissions and supported admissions must be implemented in practice to uphold the autonomy and personhood of the mentally ill as much as possible to reach the obligations of Article 12.

Having clarified the ancillary concerns of the abolitionists, we must now look at how the insanity defence could look like. Slobogin has proposed a disability neutral defence which is based on the negation of mens rea.[38] However, such a conception of the insanity defence is wrought with problems as such a definition wrongly equates a lack of mens rea with the insanity defence. This is problematic because individuals might have the requisite mens rea for the act in question due to distorted beliefs, delusions and thinking arising out of mental illness but may not have the capacity to understand that their acts are wrong or contrary to law. A purely mens rea defence would not be able to substitute the place of ‘unsoundness of mind’ adequately. If the insanity defence must be bettered and replaced, its exclusive benefits must not be disposed of.


The Insanity defence is a polarizing principle. Disability rights advocates have vehemently argued for its removal from the statute books with the passage of the CRPD, to ensure equal legal capacity to the mentally ill and ensure they are not arbitrarily deprived of their liberty. A defence which involves mental capacity assessments is discriminatory and snatches away the moral agency of the mentally ill by not holding them responsible for their actions and stigmatizes them. This is extremely relevant in India, where mental illness is still treated as a taboo.

However, such a position is neither principally nor pragmatically sound. Abolitionist claims are principally unsound as they treat all individuals identically and force the mentally ill to rely upon defences designed not to take mental unsoundness into account. This would violate equality by the imposition of a uniform standard of capacity in all aspects of life, something not necessarily mandated by Article 12. Not just this, there exist pragmatic consequential arguments for retaining the insanity defence in the Indian context to protect the mentally ill from the harms of the criminal justice system which lead to further suffering.

Reconciling these two positions is important. The concerns raised by the abolitionists are somewhat correct. The insanity defence needs certain changes. This can be conceptually done by having different capacity standards in criminal law and personal life for the mentally ill. Simultaneously, provisions seeking to make the criminal justice system more mentally disabled friendly to meet CRPD obligations. Lastly, any future substitution of the Insanity defence must not lose its exclusive benefits.

[ The author is a 1st Year, BA-LLB student at NLU Delhi]

[1] Amita Dhanda, Legal Order and Mental Disorder (Sage 2000) [2] Micheal Perlin, God Said to Abraham/Kill Me a Son: Why the Insanity Defense and the Incompetency Status Are Compatible with and Required by the Convention on the Rights of Persons with Disabilities and Basic Principles of Therapeutic Jurisprudence, Vol.54, AM. CRIM. L. REV., 477 (2017) [3] Convention on the Rights of Persons with Disabilities (adopted on 13 December 2006, entered into force 3 May 2008) 2515 (p.3) (CRPD), art 12 [4] Lucy Series and Anna Nilsson, “Article 12: Equal Recognition before the Law,” Convention on the rights of persons with disabilities: A commentary (OXFORD UNIV Press 2018) [5] Tina Minkowitz, 'Rethinking Criminal Responsibility from a Critical Disability Perspective: The Abolition of Insanity/Incapacity Acquittals and Unfitness to Plead, and beyond' (2014) 23 Griffith L Rev 434 [6] Series and Nilsson (n 5). [7] Eilionoir Flynn & Anna Arstein-Kerslake, 'Legislating Personhood: Realising the Right to Support in Exercising Legal Capacity' (2014) 10 Int'l J L Context 81 [8] Minkowitz (n 5) [9] U.N. Secretary-General & High Commissioner for Human Rights, Human Rights Council, Thematic Study by the Office of the United Nations High Commissioner for Human Rights on Enhancing Awareness and Understanding of the Convention on the Rights of Persons with Disabilities, para. 47, U.N. Doc. A/HRC/10/48 (Jan. 26, 2009) [10] Scott DC, Zonana HV and Getz MA, “Monitoring Insanity Acquittees: Connecticut's Psychiatric Security Review Board” (1990) 41 Psychiatric Services 980 [11] R.D. Mackay, ‘Fact and Fiction about the Insanity Defence’ [1990] Crim LR 247–55. [12] Code of Criminal Procedure 1973, s 335 [13] Christopher Slobogin, 'Eliminating Mental Disability as a Legal Criterion in Deprivation of Liberty Cases: The Impact of the Convention on the Rights of Persons with Disabilities on the Insanity Defense, Civil Commitment, and Competency Law' (2016) 40 Law & Psychol Rev 297 [14] Minkowitz (n 5) [15] Meron Wondemaghen, “Testing Equality: Insanity, Treatment Refusal and the CRPD” (2017) 25 Psychiatry, Psychology and Law 174 [16] John Dawson, “A Realistic Approach to Assessing Mental Health Laws' Compliance with the UNCRPD” (2015) 40 International Journal of Law and Psychiatry 70 [17] CRPD, Art 5 [18] In State of Rajasthan v. Shera Ram, (2012) 1 SCC 602, and R v Sullivan [1984] 1 AC 156 the courts accepted the plea of defence of insanity arising from epilepsy; see also R v Hennessy [1989] 1 WLR 287 [19] Malatesti L, Jurjako M and Meynen G, “The Insanity Defence without Mental Illness? Some Considerations” (2020) 71 International Journal of Law and Psychiatry 101571 [20] Ibid [21]Perlin (n 2) [22] Ibid [23] Malatesti, Jurjako and Meynen (n 20) [24] Veena Sethi v. State of Bihar, (1982) 2 SCC 583 [25] Ibid [26] SK Goyal and others, ‘Psychiatric Morbidity in Prisoners’ (2011) 53 Indian Journal of Psychiatry 253 [27] Maitreyi Misra, Deathworthy: A Mental Health Perspective on the Death Penalty (Project 39A 2021) [28] Suresh Bada Math, et al., Minds Imprisoned: Mental Health Care in Prisons (2011). [29] CRPD, Art 3 [30] CRPD, Art 4 [31] CRPD, Art 15 [32] CRPD, Art 16 [33] CRPD, Art 17 [34] CRPD, Art 4 [35] J. Cragie, Against a Singular Understanding of Legal Capacity: Criminal Responsibility and the Convention on the Rights of Persons with Disabilities, Vol.40, International Journal of Law and Psychiatry, 6 (2015) [36] Soumya AK, Maitreyi Misra, Anup Surendranath, ‘Shapeshifting and erroneous: the many inconsistencies in the insanity defence in India’ (2021) 14 NUJS L. Rev. 2 [37] Dhanda (n 1). [38] Slobogin (n 13).

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