Shifting sands: Mental disorder defense from section 84 IPC to Bharatiya Nyaya Sanhita

Dear Editor,

The legal defense for crimes by persons with mental disorders has been a contentious topic over the years. McNaughton’s case in the UK was among the first attempts at codification of such a legal defense. India inherited legal systems and penal codes from the UK, including a defense based on McNaughton’s rule. Section 84 of their Indian penal code[1] codifies the Indian legal system approach to defendants with mental disorders and states thus, “Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” Over the nearly two centuries that have passed, this provision has been tested successfully and guided the judicial system toward its judgments. This provision focuses on the defendant’s state of mind at the time of the crime.

Essentially, the unsoundness must impair the recognition of the nature of the act, its “wrongness,” and or its prescription. The burden of proof toward establishing this line of defense lies with the defendant. Emphasis is placed on establishing a cognitive impairment while overlooking impairments in judgments, impulse control, or emotional regulation. Proceeding as an all-or-none examination, section 84 disregards partial culpability or diminished responsibility. Defendants must, therefore, go about providing convincing medical evidence in the form of expert testimonies and reports – a challenging endeavor, especially in the Indian setting. Knowledge and understanding of mental disorders have far outpaced the 18^th-century legal definitions in section 84. Emotional and volitional aspects of human behavior require nuanced awareness of impaired control over actions due to mental illness or developmental conditions. However, section 84 applications may be interpreted variably by courts, being influenced by prevailing biases about mental illness.

Bharatiya Nyaya Sanhita (BNS) replaced the Indian penal code with effect from July 1, 2024. Section 22 of BNS, the corollary to section 84, IPC states thus, “An act committed by a person with a mental condition rendering them incapable of understanding the nature and consequences of their actions, or of knowing that the act is wrong, shall not be considered an offence,”[2] while replacing “unsoundness of mind” with “mental condition,” the omission of “health” from mental health condition appears ominous.

IPC primarily focuses on severe cognitive impairments, whereas BNS potentially includes a broader range of mental conditions. IPC emphasizes knowledge of the nature of the act and its wrongness, while BNS includes the awareness of consequences facilitating comprehensive assessments.

BNS appears closer to the current understanding of how mental health conditions influence human behavior while emphasizing the awareness of consequences. Some limitations of the BNS involve interpretation challenges in which broader terms may lead to varied interpretations, requiring clear guidelines.

Expanding the scope may necessitate more extensive medical and psychological evaluations, increasing the burden of proof. As mentioned in the case of Queen Empress v. Kader Nasyer Shah,[3] proof of mental illness is essential to establish a mental disorder defense establishing the presence of a mental illness just before and after the crime does not suffice – substantiality of the impairment too must be established.[4] Unfortunately, neither the erstwhile criminal procedure code nor its successor, Bharatiya Nagarik Suraksha Sanhita clarifies or guides on how or when law enforcement personnel ought to consider intersecting mental health conditions. There are no mental health assessments mandated at the time of apprehension.

Judges and lawyers may need additional training to understand the nuances of modern psychiatric concepts effectively. Broader definitions could be exploited by defendants to avoid culpability, necessitating stringent safeguards, and expert testimonies.

BNS, too, omits mentions of diminished criminal responsibility. Many developed countries have penal sections addressing the issue of diminished criminal responsibility, such as “Section 2 of the Homicide Act 1957” in the UK[5] and “United States Federal Sentencing Guidelines” in the USA[6] due to mental illness. Judicial officers could have been empowered to examine mitigating circumstances indicating mental health disturbances leading up to the crime and thus pronounce lenient sentences.

CONCLUSIONS

While the BNS has used the term mental condition, an opportunity to link the term to the definition in the Mental Healthcare Act of 2017 has been missed. Additionally, the construct of capacity laid down in section 4, Mental Healthcare Act 2017[7] was not found suitable for anything except the sufferer’s ability to make treatment decisions – the construct or its modification could have been utilized to clarify a capacity to offend. Looking forward, one can anticipate better days ahead without the term unsoundness of mind. Psychiatrists and mental health professionals ought to welcome opportunities to clarify the nuances evidently incorporated into the BNS section 22 for legal functionaries and law enforcement personnel.

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Conflicts of interest

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