The DEFENCE of INSANITY- Comparative Analysis a Need for Reform

8/12/2019 The DEFENCE of INSANITY- Comparative Analysis a Need for Reform

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THE DEFENCE OF INSANITY: COMPARATIVE

ANALYSIS & A NEED FOR REFORM

A Dissertation Submitted To Kurukshetra Universotu In Partial

Fulfillment Of The Requirements For The Award of the Deree of

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

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TARUNA MADAN

U$D%R T&% SUP%R'ISIO$ OF

DR. C.P. SHEORAN

DIRECTORATE OF DISTANCE EDUCATION

KURUKSHETRA UNIVERSITY KURUKSHETRA

2009-2010

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TABLE OF CONTENTS

S.No. PARTI*U+ARS P, $o,

CERTIFICATE III

ACKNOWLEDGMENT IV

TABLE OF CASES V-VI

INTRODUCTION 1-11

Insanit- . Defen/e In Prose/ution (

&istori/al Pers0e/tive

%nlish +aw

Indian +aw

)!1

&-0othesis 2

Ob3e/tives of Stud- 2

Resear/h 4ethodolo- 5

S/o0e of Stud- 5

*ha0terisation S/heme (6!((

1. CHAPTER 1 : INSANITY IN INDIA: LEGAL

PROVISIONS

12-21

(,( 47$ahten7s Rule ()

(,) Se/tion 28. Pre!requisites (9!(:

(,9 ;udi/ial Inter0retation (:!(1

(,8 +eal versus 4edi/al Insanit- (1

(,: Proof of Insanit- (2!(5

(,< Defen/e of Insanit-. Pro/edural As0e/t (5!)(

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2. CHAPTER 2 : MNAGHTEN RULES : MODERN

PERSPECTIVE

22-2!

". CHAPTER " : LEGAL INSANITY: A COMPARATIVE

ANALYSIS

2#-"$

9,( Position of Insanit- In %nland )2!96

9,) Position of Insanit- In the U,S,A

A, Durham Rule

", The "rawner Rule

*, The Insanit- Defen/e Reform A/t= (528

D, The A,+,I Test

9(

9)

99

99!98

9,9 Position In Other *ountries 98!9:

%. CHAPTER % : SUGGESTIONS AND CONCLUSION "&-%1

BIBLIOGRAPHY %2-%$

"ooks 8)!89

;ournals= Arti/les= Re0orts 89!8:

Other Sour/es 8:

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AMITY LAW SCHOOL

CERTIFICATE

I have the 0leasure to /ertif- that 0!"10""#0%= a student of Amit- +aw S/hool=

$ew Delhi has 0ursued her resear/h work and 0re0ared the 0resent 0a0er entitled

T&% D%F%$*% OF I$SA$IT#. *om0arative Anal-sis > A $eed for Reform under

m- su0ervision and uidan/e, To the best of m- knowlede the 0a0er is the result of

her own resear/h, This is bein submitted to ??SIP Universit- for the Deree of

"a/helors of +aw in 0artial fulfillment of the requirements of the said Deree,

@Prof, 4,K, "ala/handran 4r, Rakesh Sinh

Dire/tor +e/turer

Amit- +aw S/hool= $ew Delhi Amit- +aw S/hool= $ew Delhi

"lo/k F!(= Se/,!(): "lo/k F!(= Se/,!():

Amit- *am0uses Amit- *am0uses

Amit- Universit- Amit- Universit-

$oida, $oida,

:


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TABLE OF CASES

S, $o, $ame of the *ase *itation Pae $umber

(, R. v. Arnold @(1)8 (< &ow, St,

Tr, F,

)66

9=:=))

8, Queen Empress v. Lakshman

Dagdu

@(22


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(1, Deorao case AIR (58< $a 9)( (2

(2, Queen Empress v. Ahmad Alle! (( B,R,/r, ): 0,)< (2

(5, "hanti devicase AIR (5


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INTRODUCTION

The law of a so/iet- is normall- for a 0arti/ular so/ial rou0 that is 0resent in

a mu/h more develo0ed so/iet- and owin to su/h develo0ment the establishment of

law be/omes im0erative in that 0arti/ular so/ial rou0, As a /onsequen/e the

mentall- imbalan/ed Cmembers7 of an- so/ial rou0 fall on the 0eri0her- of it,

4embershi0 to that so/ial rou0 require features of intelle/tual /a0a/it-= 0arti/i0ation

and a//ountabilit- all of whi/h are im0ossible without intellien/e,

The law in India is a refle/tion of the so/ial attitudes towards the Cinsane7

whi/h var- between absolute denial and 0ained forbearan/e, Insanit- or unsoundness

of mind is not defined in the a/t, Under law it means a disorder of the mind= whi/h

im0airs the /onitive fa/ult- that is= the reasonin /a0a/it- of man to su/h an eEtent

as to render him in/a0able of understandin /onsequen/es of his a/tions, *riminal

insanit- refers to the individual7s mental makeu0 at the time of the offendin a/t was

su/h that= with res0e/t to the /riminalit- of his /ondu/t= he substantiall- la/ked

/a0a/it- to a/t rationall-,(A//ordin to medi/al s/ien/e= insanit- is a disorder of the

mind that im0airs the mental fa/ilities of a man,)

The defen/e of insanit- and the /ontroversies surroundin it derive their

im0ortan/e from that fa/t that when this defen/e is invoked fundamental 0rin/i0les of

3usti/e= moralit- and ethi/s= and humanit- are at stake, The mere 0resen/e of this

defen/e arti/ulates the /on/ern of the law and 0ro3e/ts /itiens as rational human

beins,

INSANITY : DEFENCE IN PROSECUTION

The question of insanit- is reall- not a question of fa/t, The leal question is

of res0onsibilit-, It is a00arentl- a question of fa/t not aued b- stri/t rules, This

/hanes= however= and later we find insanit- aued b- infleEible leal tests, Re/ent

(Finarette= &erbert,=Meaning of 'riminal 3nsanit!4 Universit- of *alifornia Press= +os Aneles=

@(51)= 0, )((,);usti/e 'erma= ;,S,= K,D,?aur5'ommentar! on 3ndian $enal 'ode4Universal +aw Publishin *o,+td,= $ew Delhi= @)66


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tenden/ies indi/ate a develo0ment towards re/onition of insanit- not as a question of

law but as one of fa/t,9

Two fundamentall- distin/t questions are intervined in dis/ussions of the

insanit- defen/e, One /on/erns the moral issue of res0onsibilit-= a question lookin

ba/kward into the offender7s mental /ondition at the time of the offen/e, The other is

essentiall- dis0ositional and looks forward in time about what should be done with

mentall- disordered offenders in/ludin those who are a/quitted b- reason of insanit-,

The moral /ore of the defen/e must be retained be/ause some defendants affli/ted b-

severe mental disorder who are out of tou/h with realit- and are unable to a00re/iate

the wronfulness of their a/t /annot 3ustl- be blamed and do not therefore deserve to

be 0unished, The defen/e of insanit- in short is essential to the moral interit- of the/riminal law,8

HISTORICAL PERSPECTIVE

E'()*+, L

It ma- be observed that the Indian +aw relatin to the defen/e of insanit- is

based stri/tl- on the %nlish +aw, Under the %nlish +aw the startin 0oint from a

histori/al 0oint of view did not reard mental disorder or insanit- as havin an-

bearin u0on the matter of /riminal uilt, Prin/i0les of /riminal liabilit- datin 0rior

to the $orman /onquest 0ersisted into the (9th/entur- and in/luded CA man who has

killed another b- misadventure= thouh he ma- deserve a 0ardon is uilt- of a /rime

and the same rule a00lies to a lunati/,G:Thouh the earlier law eE/used the insane

offender from 0unishment of the felon= it did not in all /ases let him o free, The

/ommon law 0rovided that where a felon had /ommitted a /rime and had be/omeinsane before trial he would not be /alled u0on to answer or if after the 3udment he

be/ame insane he would not be eEe/uted, R. v. Arnold


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res0onsibilit- and that whi/h will not, For a 0erson to be res0onsible a man must be

totall- de0rived of his understandin and memor- and not no what he is doin and

/om0ared this mad man to a beast or infant, The C?ood and %vil test7 was laid down

in the /ase of R v. Madfield, The test laid down in this /ase is Cthe abilit- to

distinuish between ood and evil7, In this /ase= the a//used was /hared for treason

for attem0tin to kill the Kin, The defen/e 0leaded that he was not able to

distinuish between ood and evil and Cwild beast test7 was unreasonable, &e was

a/quitted,

Durin the (5th*entur- in Hedfields case6 it was denied that the defendant

must be totall- de0rived of all mental fa/ulties before he /ould be a/quitted and itsevered the tie between insanit- and abilit- to distinuish ood from evil or riht from

wron, After this /ase the *riminal +unati/s A/t (266 was 0assed reulatin the

dis0osal of 0ersons found insane on arrainment or not uilt- of the offen/e on the

rounds of insanit-, The B-nns A/t = (262 was introdu/ed for the better treatment of

the insane and followin it were amendin a/ts that laid the basis for ensurin luna/-

administration in %nland, &owever no a//e0table standards /ould be laid down until

(289 when the 47 $ahten rules were formulated,2 The- are the basis for

determination of /riminal res0onsibilit-, &ere the defendant must show that Hhe was

labourin under su/h a defe/t of reason from disease of the mind as not to know the

nature and qualit- of the a/t. or if he did know it= that he did not now what he was

doin was wron,G $ature and qualit- refers to 0h-si/al nature of the a/t and

alternativel- in not knowin that what he was doin was wron means he must have

been de0rived of the knowlede that his a/t was aainst the law of the land, The

3udes /onsidered that if the delusion was onl- a 0artial delusion= and of otherwise the

individual was not insane that he should be /onsidered res0onsible for the a/t, 5It is

evident that under these rules delusions are rearded as the obvious manifestations of

defe/ts of reason for little attention is 0aid to other forms of insanit- to whi/h

delusional beliefs do not fiure so 0rominentl-,(6This test is also knows as the Criht

and wron test7 and is a00lied in %nland= India= *anada and in 0ra/ti/all- all the

1@(266 )1= &ow, St, Tr, ()2)= cited from Beihofen= &enr-,=Mental disorders as a criminal defence4Dennis > *o, In/,= +aw "ook Publishers= $ew #ork= @(5:8= P0, : F, )66= cited from *e/il= ;,B,=Russell on 'rime= Stevens and Sons

+td,= 'ol, I= ()th

ed, @(5


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Ameri/an States,((The first landmark statute was the +unati/s A/t= (28:, Under this

a/t 0ersonal libert- was iven the requisite /onsideration and it was 0rovided that a

0erson /ould not be detained on rounds of mental illness unless there was overt

a00earan/e of this mental illness, The $ational 4ental &ealth Servi/es A/t and

$ational 4ental &ealth A/t= (5:5 were subsequentl- introdu/ed,()

INDIAN LAW

In an/ient India= leal and moral dereli/tions were intermiEed, In &indu

0hiloso0h- whether the a/tion was voluntar- or involuntar- the 0er0etrator had to

rea0 the /onsequen/es of his deeds, Theor- of karma was sinifi/ant in formulation of

theor- of absolute liabilit-, A//ordin to 4anu= Ha /hild and an insane 0erson amon

others= is to be foriven and not 0unished for a /rime,G The an/ient literature in the

an/ient Indian law does not make it /lear whether or not the insane 0erson is full-

absolved of his /riminal liabilit-, In (291= 4a/aula- drafted a /ode where he had

0rovided for the rant of an immunit- to a lunati/,

The substantive law relatin to the defen/e of insanit- in India is /ontained in Se/tion

28 of the Indian Penal *ode= while its 0ro/edural ad3un/t is /ontained in /ha0ter '

of the *ode of *riminal Pro/edure= (519, Se/tion 28 of the Indian Penal *ode la-s

down that Hnothin is an offen/e whi/h is done b- a 0erson who at the time of doin it

= b- reason of unsoundness of mind = is in/a0able of knowin the nature of the a/t= or

that he is doin what is either wron or /ontrar- to law,G Se/tion 28 mentions the

leal test of res0onsibilit- in /ase of alleed unsoundness of mind= whereb- the

/riminalit- of the a/t is to be determined, This se/tion in substan/e is the same as the

47$ahten rules as modeled b- the %nlish +aw,(9

The im0ortant questions that arise in reards to this defen/e are.

(, &ow /an insanit- be dete/ted,

), Bhat should the line of demar/ation be between sanit- and insanit- in order to

eEtend 0rote/tion of law to a man from /riminal 0rose/ution,

(6Bhitlo/k= F,A,= 'riminal Responsi&ilit! and Mental 3llness= "utterworths > *o, Publishin +td,=+ondon= @(5 *om0an- In/or0,= $ew #ork= 'ol I= @(58


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A number of tests have been laid down over a lenth of time for answerin these

questions and the kind and deree of insanit- available as a defen/e to a /rime has

been defined man- times, &owever the most notable of all is the Criht and wron

test7 formulated inMNaghtens78/ase as mentioned 0reviousl-,

From their in/e0tion the rules have been sub3e/ted to /onstant /riti/ism from both

leal and medi/al /ommentators, The 47$ahten test is based on an entirel- obsolete

and misleadin /on/e0tion of the nature of insanit-= sin/e insanit- does not onl-= or

0rimaril-= affe/t the /onitive or intelle/tual fa/ulties= but affe/ts the whole

0ersonalit- of the 0atient= in/ludin both the will and the emotions thereb-

disreardin the do/trine of Cirresistible im0ulseG, Queen Empress v. Lakshman

Dagdu79 was the first Indian /ase to raise the 0roblem of irresistible im0ulse, In

Queen Empress v. edar Nas!er "hah7:the /ourt observed that the Indian law is like

the law of %nland whi/h limits non!liabilit- onl- to those /ases in whi/h insanit-

affe/ts the /onitive fa/ulties and not emotions and will relatin to im0ulses,

Irresistible im0ulse has been re/onised in %nland as a 0artial defen/e but this is not

that /ase under the Indian +aw, In view of the /riti/ism of the 47$ahten rules in

"ritain and in view of the re/onition of Cirresistible im0ulse7 in several /ountries the

La- 'ommission76took note of the stron /riti/ism aainst the 47$ahten Rules and

addressed itself to the question of amendin the laws= ultimatel- it did not re/ommend

an- /hane,(2Under this re0ort an insane 0erson= therefore= ma- often know about the

nature and qualit- of his a/t and that it is wron and forbidden b- law= but -et /ommit

it as a result of mental disease,(5CUnsoundness of mind7 is as /ontroversial as Cdisease

of mind and is /a0able of different inter0retation, After considering the desirability of

introducing the test of diminished responsibility under the IPC, Section 84, it gave its

opinion in the negative due to the complicated medico-legal issue it would introduce

in trial.

(8R . v,Daniel MNaghten4 2 %R 1(2 =cited from ;usti/e 'erma= ;,S,= K,D,?aur4 "upra4 n, ), at 0,


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To /all u0on the insane to dis/hare the onus of 0rovin irres0onsibilit- is

loi/all- absurd, A 0lea of not uilt- on the round of insanit-= if it su//eeds= will

eE0ose the a//used to a 0la/e of detention to be /onfined there for observation= but no

attention is 0aid to his mental /ondition b- the 0s-/hiatrists or do/tors, Bhile the

riidit- of the 47$ahten Rules has been breakin down under the advan/ements

made b- 0s-/hiatr- and s/ien/e in %nland no su/h attem0t has been made in our

/ountr-, Se/tion 28 -et remains stati/, %ver- 0erson who is mentall- diseased

/annot seek immunit- from /riminal 0ro/eedins on the basis of insanit-= the

Su0reme *ourt has ruled, The Indian Penal *ode7s Se/tion 28= whi/h eE/uses 0ersons

of unsound mind from /riminal 0rose/ution= is not available automati/all- and the

burden of 0rovin insanit- lies with the a//used= the /ourt said in a re/ent 3udment,)6

It is hih time that we re/onised the differen/e between a /riminal on one hand= for

whom the /rime is an a/t of free will and the unfortunate abnormal for whom the

/rime is onl- a /onsequen/e of his si/k mind, An- failure to do so will onl- diminish

the im0ortan/e of the Crule of law7 whi/h lies at the /ore of ever- /ivilisation, )(

In addition to the 47$ahten test= there are three other histori/all- sinifi/ant

tests of insanit-. the irresistible im0ulse test the Durham test and the A+Itest @TheAmeri/an +aw Institute test, Bhile the irresistible im0ulse and Durham tests are not

widel- a//e0ted= the A+I test has= histori/all- at least= a stron followin amon the

states in the USA,)) In (52)= ;ohn B, &in/kle-= who had attem0ted in (52( to

assassinate President Ronald Reaan= was a/quitted b- a Distri/t of *olumbia /ourt

b- reason of insanit-, The enormous outrae after &in/kle-Ls a/quittal led three states

to dro0 the insanit- defen/e entirel- @4ontana= Utah= and Idaho= 3oined b- a fourth=

Kansas= in (55:, Other states reformed their insanit- defen/e statutes= b- ado0tin

the 4L$ahten standard over the A+I standard= b- shiftin the burden of 0roof fromthe state to the defen/e= b- /hanin their /ommitment and release 0ro/edures= or

ado0tin a ?uilt- but 4entall- Ill defen/e, In addition= the federal /ourts shifted

from the A+I standard to a new law eliminatin the irresistible im0ulse test for

insanit- defen/es in federal /rimes,)9The Federal Insanit- Defen/e Reform A/t= a

)6HInsanit- /an7t be eE/use for /rimeG. S*= in )he times of 3ndia4$ew Delhi= 61M61M61)(Das= $ibedita,= HInsanit- and the lawG= in /riminal law 3ournal = @(559= *ri,+,;, ;ournalM) II, 0,)8,))htt0.MMw9,u/hastins,eduM0lriMs0rin5:Mtm0insan,html Nlast visited on ()th Se0tember= )662)9

htt0.MMwww,enotes,/omMever-da-!law!en/-/lo0ediaMinsanit-!defense Nlast visited on 2th Se0tember=)662

(9


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res0onse to the &in/kle- verdi/t= eliminated the irresistible im0ulse test from the

insanit- defen/e under federal law, The verdi/t a//elerated the ado0tion of uilt- but

mentall- ill verdi/ts b- states,

In order to /orre/t the eEistin defi/ien/ies in the insanit- defen/e s-stem the

/riminal 3usti/e s-stem in India needs to ado0t a rehabilitative fo/us on treatment of

su/h 0ersons, The *ourts in India need to ado0t a more 0roressive attitude towards

this defen/e of insanit- and revise the o0inion as to what /auses unsoundness of

mind for the 0ur0ose of Se/tion 28 in the liht of re/ent advan/es in medi/al

s/ien/e= es0e/iall- in the field of 0s-/hiatr-, The law has be/ome intimatel-

involved in medi/al 0ra/ti/e onl- in the )6th /entur-, Until re/entl- leal medi/ine=

orforensi/ medi/ine= was a field devoted eE/lusivel- to the uses of medi/ine in the

/ourtroom= 0rimaril- in two settins. forensi/ 0atholo- and forensi/ 0s-/hiatr-,

Bhen a defendant 0leads insanit- as a defen/e= a 0s-/hiatrist is asked to eEamine

the defendant and to testif- as to his mental state at the time of the /rime, The

relevant question is usuall- whether his /riminal behaviour was the 0rodu/t of a

mental illness or whether the defendant was able to distinuish riht from wron, In

/ivil /ases= 0s-/hiatrists frequentl- a00ear as witnesses in /ases of /hild /ustod-

and involuntar- /ommitment,

Sin/e (5


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(, In view of the so0histi/ation in the field of medi/al s/ien/e and 0s-/hiatr-

whether 47$ahten Rules need to be revisited and reformulated,

), Bhether the ambit of Se/tion 28 I,P,* should be eEtended to in/lude /ases of

delusion= hallu/ination= irresistible im0ulses kee0in in mind the modern da-

stressful lifest-le,

9, Bhether the develo0ment in other /ommon law /ountries like U,K, and

U,S,A, in the field of leal insanit- /an be safel- in/or0orated under S, 28

I,P,*

OB/ECTIVES OF STUDY

Throuh this resear/h 0a0er= the resear/her wishes to tra/e the oriin and

histori/al ba/kround of insanit- law,

Throuh this resear/h 0a0er the resear/her wishes to stud- the various leal

0rovisions relatin to the +aw on Insanit-,

The resear/her wishes to hihliht and anal-se the 47$ahten rules to find

out the relevan/e and a00li/abilit- of this rule in the 0resent times,

The resear/her also 0ro0oses to hihliht the requirement and need for reform

of laws relatin to insanit-, She 0ro0oses to hihliht the im0lementation of insanit-

laws in the /ountr- and the manner in whi/h the laws /an be strenthened= im0roved

and im0lemented 0ro0erl-,

In addition to the above= the resear/her wishes to hihliht the alternative

solutions= 0ro0ose suestions and em0hasis on laws that /an be imbibed from

different /ountries a/ross the world,

In this manner= the resear/her wishes to hihliht the need for the law in India

to kee0 u0 with the develo0ment of modern /riminal 0s-/holo- and a//ordinl-

brin out some fundamental and ne/essar- alterations,

(:


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RESEARCH METHOLOGY

The resear/h methodolo- ado0ted for the 0resent resear/h 0a0er shall /entre

on non!em0iri/alMdo/trinal resear/h, The resear/her will rel- on 0rimar- sour/es like

statutes and /ase!laws, An in!de0th anal-sis of the se/ondar- sour/es like histor-=

/ommentaries and 0resent situation on the sub3e/t shall also be undertaken and a

/om0arative anal-sis of the law will be 0erformed,

The resear/her shall 0rimaril- rel- on books and 3ournals in the said field,

Referen/e shall also be made to news0a0er arti/les whi/h hel0 assess the /urrent

s/enario= the rea/tion of the authorities and the 0ubli/ o0inion of the same,

SCOPE OF STUDY

The resear/her aims at /overin the as0e/t relatin to the need for reform of

the insanit- defen/e as 0rovided for in the substantive law in India= an anal-sis of the

47$ahten rules= a /om0arative anal-sis with the laws of different /ountries= an

alternative solution to the 47$ahten rules and the /ontrovers- reardin its abolition

in other /ountries, The s/o0e of stud- is eEtended to those /ases whi/h fail to qualif-

the tests of se/tion 28, The stud- will also anal-se delusion= hallu/ination and

irresistible im0ulse with the view of in/or0oratin them under se/tion 28, To this and

in view the stud- will es0e/iall- fo/us on the /om0arative anal-sis of laws develo0ed

in other /ountries like the U,K > U,S,A,

(


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CHAPTERISATION SCHEME

The Resear/her has divided this resear/h 0a0er into four /ha0ters alon with an

introdu/tion and the last /ha0ter would ive out a /on/lusion and some suestions,

(, Insanit- in India . +eal Provisions

Under this /ha0ter= the resear/her will deal with the 0rin/i0le u0on

whi/h this se/tion is based= an overview of the s/o0e and a00li/abilit- of

Se/tion 28, The resear/her also 0ro0oses to 0rovide the evidential and

0ro/edural as0e/ts of insanit- b- referrin to The %viden/e A/t= (21) and

*riminal Pro/edure *ode= (519, The resear/her aims to show how the defen/e

of insanit- ma- be established in a//ordan/e with the a//used 0ersons

res0onsibilit- before the /riminal 0ro/eedins and how the defen/e of insanit-

ma- be established in a//ordan/e with the defendant7s mental /ondition

durin the /riminal 0ro/eedins,

), 47$ahten Rules. 4odern Pers0e/tive

Under this /ha0ter= the resear/her will 0rovide an insiht into the

47$ahten Rules and the various /ontroversies and /riti/isms surroundin the

47$ahten Rules, The resear/her aims to show whether the substantive law

reardin insanit- in India is to be suitabl- amended and the need for reform

of the same,

9, +eal Insanit-. A *om0arative Anal-sis

Under this /ha0ter= the resear/her is dealin with an anal-sis of the

leal 0rovisions in other /ountries reardin the defen/e of insanit-, The

(1


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resear/her will also 0rovide various tests used in other 0arts of the world that

/an serve as an alternative to the 47$ahten rules, The resear/her aims to

0rovide for an a00ro0riate alternative so as to 3ustif- the eEisten/e of the

defen/e,

8, Suestions and *on/lusion

Under the 0art dealin with /on/lusion= the resear/her will 0rovide her

o0inion on the said 0roblem= the 0resen/e or absen/e of laws in India

/om0arative anal-sis of the laws in India and a/ross the world= need and

obsta/les relatin to their im0lementation and all other as0e/ts related to the

0roblem, The resear/her aims to 0rovide an o0inion on the area bein

resear/hed,

Under the 0art dealin with suestions= an anal-sis of the reform

0ro0osals on the insanit- defen/e in other 0arts of the world will be 0rovided,

The resear/her will 0rovide a /om0arative anal-sis between the law in for/e in

India and the laws in for/e in other 0arts of the world, The resear/her aims to

show the requirement for the im0lementation of the latter in India, Under this

0art= the resear/her shall 0ro0ose /hanes whi/h= she feels= should be made in

the laws in for/e in India= or in the manner of im0lementation and the

advantaes of su/h im0lementation, The resear/her aims to 0rovide her

suestions so as to solve the 0roblem,

(2


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CHAPTER 1- INSANITY IN INDIA: LEGAL

PROVISIONS

Se/tion 28 of the Indian Penal *ode sa-s= H$othin is an offen/e whi/h is

done b- a 0erson= who at the time of doin it= b- reason of unsoundness of mind= is

in/a0able of knowin the nature of the a/t= or that he is doin= what is either wron or

/ontrar- to law, The rationale of the law of insanit- as embodied in the se/tion has its

sour/e in the 47$ahten rules,)8

MNAGHTENS RULE

Daniel 4/7$ahten was found to be insane and a/quitted on a /hare of

murderin Sir Robert Peel7s 0rivate se/retar-= it bein his intention to kill Peel, &e

was /ommitted to the hos0ital but there was 0ubli/ out/r- about the lenien/- of the

verdi/t, The matter was debated in the &ouse of +ords where it was de/ided to seek

the o0inion of the 3udes on leal 0rin/i0les relatin to insanit-, The rules laid down

were.

@( %ver-one is to be 0resumed sane and to 0ossess a suffi/ient deree of reason

to be res0onsible for their /rimes until /ontrar- is 0roved to the satisfa/tion of

the 3ur-

@) To establish a defen/e of insanit-= it must be /learl- 0roved that at the time

of /ommittin the a/t= the a//used was labourin under su/h a defe/t of reason=

from the disease of the mind= as not to know what he was doin was wron):

@9As to his knowlede of the wronfulness of the a/t= the 3udes said. Cif the

a//used was /ons/ious that the a/t was one whi/h he ouht not to do and the

same time the a/t was /ontrar- to the law of the land= he is 0unishable and@8 Bhere a 0erson under insane delusion as to eEistin fa/ts /ommits an

offen/e in /onsequen/e thereof= /riminalit- must de0end on the nature of the

delusion, If he labours under 0artial delusion onl-= and is not in other res0e/ts

insane= he must be /onsidered in the same situation as to res0onsibilit- as if the

fa/ts with res0e/t to whi/h the delusion eEists were real,

)8Ha#ara "ingh v. "tate of $un%a&= AIR(5:2 Pun3 (68,):

Allen= 4i/hael ;,= )e+t&ook on 'riminal la-= OUP OEford +td,= 1th ed,= @)669= 0, ()9,

(5


20/52

In (5(


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those /ases wherein a man b- reason of delusion is unable to a00re/iate the distin/tion

between riht and wron,

The a//used is 0rote/ted not onl- when= on the a//ount of insanit-= he was

in/a0able of knowin the nature of the a/t= but also when he did not know either that

the a/t was wron or it was /ontrar- to the law, &e is however= not 0rote/ted if he

knew that what he was doin was wron= even if he did not know that it was /ontrar-

to the nature of the law or vi/e versa, In the 47$ahten rules Cwron means /ontrar-

to law and or Cwron7 a//ordin to the o0inion of one man or a number of 0eo0le on

the question whether a 0arti/ular a/t miht or miht not be 3ustified, The defen/e of

insanit- ma- be established if it is 0roved that at the time of /ommittin the a/t= the

0art- a//used was labourin under su/h a defe/t of reason= from disease of the mind=

as not to know the nature or qualit- of the a/t he was doin= or if he did know it= that

he did not know that he was doin what was wron )5,The benefit of this 0rovision

ma- be taken onl- if at the time of /ommittin the /rime= the offender b- reason of

unsoundness of mind was in/a0able of knowin the real nature of his a/t or that the

a/t was morall- wron or /ontrar- to law96,

The *uttu/k &ih *ourt has laid down /ertain 0rin/i0les in the /ase of "undra

Ma%hi


22/52

@


23/52

in/ident did not showed an- sin of insanit-, This /onvi/tion was /onfirmed b- the

hih /ourt, The a//used made an a00eal to the Su0reme *ourt, The Su0reme *ourt

also u0held the /onvi/tion of the a//used and laid down /ertain /riteria a//ordin to

whi/h an a//used in entitled to the defen/e under the 0rovision, It said that in

determinin whether the a//used has established his /ase under the 0urview of Indian

Penal /ode= se/tion 28= Cthe /ourt has to /onsider the /ir/umstan/es whi/h 0re/eded=

attended and followed the /rime, The /ru/ial 0oint of time for determinin the state of

mind of the a//used is the time when the offen/e was /ommitted, The relevant fa/ts

are motive for the /rime= the 0revious histor- as to mental /ondition of the a//used=

the state of his mind at the time of the offen/e= and the events immediatel- after the

in/ident that throw a liht on the state of his mind,

In the /ase ofAshruddin v. ing9:=Ashruddin had killed his son while a/tin

under the delusion of a dream believin it to be riht, The a//used had dreamt that he

was /ommanded b- someone to sa/rifi/e his son of five -ears, The neEt mornin the

a//used took his son to a mosque and killed him b- thrustin a knife into his throat,

The *al/utta &ih *ourt observed that it was a /ase of insanit- under Indian Penal

*ode= se/tion 28 and dis/hared the a//used from /riminal liabilit-, The /ourt said

that in order to enable an a//used to obtain the benefit of the aforesaid 0rovision= he

must establish an- one of the followin three elements

@( The nature of the a/t was not known to the a//used

@) The a/t was not known b- him to be /ontrar- of law or

@9 The a//used did not know that the a/t was wron,

The "en/h held that the third element was established b- the a//used= namel-=

that the a//used did not know that the a/t was wron, This was obvious on the round

that the a//used was labourin under the belief that the dream was a realit-,

&owever= this view of the *al/utta &ih *ourt was /riti/ised b- Allahabad

&ih *ourt in the /ase ofLa+mi vs. "tate


24/52

3n the case of Ha#ara "ingh v. "tate91&aara Sinh was under a delusion that his wife

was unfaithful to him, One da-= bein disturbed b- those thouhts= he /aused her

death b- 0ourin nitri/ a/id over her, 4edi/al eviden/e showed that he knew what he

was doin and had theordinar- knowlede of riht and wron, &e was /onvi/ted for

murder,

LEGAL VERSUS MEDICAL INSANITY

(, 4edi/al res0onsibilit- is /on/erned with the welfare of the individual and

leal res0onsibilit- with the welfare of the so/iet-, The medi/al /on/e0t is afun/tion a/tuated b- emotion and determined b- intrinsi/ fa/tors, To establish

defen/e of insanit- the mental /ondition referred to in se/tion 28 must eEist at

the time when the a/t was /ommitted,92For the 0ur0ose of Cleal insanit-7

unsoundness of mind must be at the time of the omission of the a/t, 95

), To a leal man motive is not of de/isive im0ortan/e in determinin insanit- as

mere absen/e of motive is not ne/essaril- an indeE of insanit-,86 Bhereas

motivation for an a/t is of 0rimar- im0ortan/e to a medi/al man,

9, Bherever there is a /onfli/t between medi/al and leal insanit-= the leal view

of insanit- 0revails over medi/al as under se/tion 28 the /ourts are onl-

/on/erned with the leal insanit-,8(

The reason for irresistible im0ulse as a valid defen/e not bein in/or0orated

under se/tion 28 is to be found in the fa/t that meaer knowlede reardin the effe/t

of insanit- on the mind made both the 3ur- and the 3ude ske0ti/ of eEisten/e of su/h

im0ulse and it is 0erha0s owin to the same /ause that the IP* also does not /learl-

0rovide for this /ause,8) &owever in %nland the ro-al /ommission on /a0ital

0unishment @(585!(5:9 ado0ted it in its final re/ommendation and the out/ome led

to &omi/ide A/t= (5:1 whi/h talks about do/trine of diminished res0onsibilit-,

91"upra= n, )8,

92,agga v. Emporer= AIR (596= +ah, )1


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PROOF OF INSANITY

G')

In all /ases where leal insanit- is set u0 as a defen/e it is material to /onsider

the /ir/umstan/es whi/h have 0re/eded= attended and followed the /rime that is a

whether there was deliberation and 0re0aration for the a/t= b whether it was done in a

manner whi/h showed a desire for /on/ealment / whether after the /rime the

offender showed /ons/iousness of uilt and made efforts to avoid dete/tion and d

whether after his arrest he offered false eE/uses and made false statements, 89 The

0remises= the manner in whi/h the o//urren/e took 0la/e= the nature of the in3uries

infli/ted b- the a//used= the duration of the atta/k= the mania/al fur- with whi/h theatta/k was delivered et/, should be /onsidered /ou0led with the absen/e of an-

motive or 0rovo/ation to /ommit an offen/e,88The /ru/ial time for de/idin whether

the benefit of this se/tion should be iven or not is the material time when the offen/e

takes 0la/e,

E345 O4*'*o'

%viden/e of eE0erts are relevant in matters of insanit-, Se/tion 8: of the

Indian %viden/e A/t makes eE0ert o0inion admissible as eviden/e, &owever= it is

evident that the o0inion of the eE0ert should be /onsidered merel- to be Cof relevan/e7

and no more, The /ourt is not bound b- su/h o0inion, The Indian %viden/e A/t onl-

0rovides about the relevan/- of eE0ert o0inion but ives no uidan/e as to its value,

The value ma- be tainted due to several reasons like human 3udment bein fallible 8:=

the eE0ert witness relu/tant to s0eak the whole truth if it oes aainst the 0art-

invitin him= an eE0ert who has not know the /ounsel but has onl- sat down durin

the entire trial /annot be reasonabl- asked his o0inion, These fa/tors seriousl- redu/e

the 0robative value of eviden/e84 "harat +aw &ouse= $ew Delhi= 'ol I= )


26/52

B67' o8 Poo8

The burden of 0roof that the mental /ondition of the a//used was at the /ru/ial

0oint of time= su/h as is des/ribed in this se/tion lies on the a//used who /laims the

benefit of this eEem0tion, The burden of 0rovin the eEisten/e of /ir/umstan/es

brinin the /ase within the 0urview of se/tion 28 lies u0on the a//used under Se/tion

(6: of the Indian %viden/e A/t,82This se/tion sa-s that firstl- the /ourt 0resumes that

the a//used is inno/ent and 0rose/ution must 0rove he is uilt-, On/e the 0rose/ution

has 0roved be-ond a reasonable doubt that the a//used is uilt- the burden of 0rovin

the defen/e of insanit- lies on the a//used, The Su0reme *ourt also u0held the

0rin/i0le in the /ase of ".. Mohammed v. "tate of Maharashtra8? and said that the

a//used have to 0rove that he is insane, &owever= this requirement of 0roof is not

heav- as it is on the 0rose/ution to 0rove the offen/e and is based on balan/e of

0robabilities, Sanit- is 0resumed to be the natural /ondition of man, The a//used onl-

has to satisf- the standard of a 0rudent man and he need not establish his 0lea be-ond

all reasonable doubt,:6This is the standard of 0roof that the a//used has to satisf- and

the entire /ondu/t must be taken into /onsideration, The /ourt also has a dut- to look

after the defen/e of the a//used as the a//used who is insane will not be able to

defend himself 0ro0erl- and effe/tivel-, The 0lea of insanit- /an even be raised in an

a00eal,

DEFENCE OF INSANITY: PROCEDURAL ASPECT

The unsoundness of mind ma- ive rise to a sus0i/ion that the a//used miht

have /ontinued to be insane even at the time of the trial, 4ental unsoundness ma- not

onl- involve the defendant7s mental /ondition at the time of the a/t but also at the

time of the /riminal 0ro/eedins! whether he is 0resentl- sane enouh to re/eive the

senten/e,

A//ordin to the Re0ort of the Ro-al *ommission on *a0ital Punishment:(the

question whether or not a 0risoner is fit or unfit to answer the /hare and stand trial is

based on eviden/e of mental illness= severe sub normalit-= deaf mutism and when the

a//used /laims to have no memor- of the events for whi/h he is to be tried, *lear

82"upra4 n, )5,8585

AIR (51) S* )(


27/52

medi/al eviden/e a//ordin to the re0ort does not need to fulfill the /onditions of the

47$ahten Rules, &owever= 0ro/edure has varied over /enturies and there does not

a00ear to be an- final areement on how these /ases are to be taken, There is a

differen/e between in/a0a/it- at the time of doin the a/t /hared and in/a0a/it- at

the time of trial, "oth are indu/ed b- unsoundness of mind= the former is substantive

whi/h eE/ludes the offen/e under se/tion 28 and the latter onl- affe/ts the 0ro/edure

and merel- 0ost0ones the trial whi/h must be resumed when the in/a0a/it- disa00ears

on a future date,:)

The 0ro/edure for the trial of insane 0erson is laid down in the *ode of *riminal

Pro/edure= (519= *ha0ter ', *ode of *riminal Pro/edure= (51)= se/tions 9)2 and

9)5 deals with the 0ro/edure to be followed in /ase the a//used is a lunati/, It sa-s

that when a maistrate while /ondu/tin an inquir- feels that the 0erson is of unsound

mind and /onsequentl-= in/a0able of makin his defen/e= he ma- ask a medi/al

offi/er to eEamine the 0erson and 0ost0one the trial of the /ase, The *ode of *riminal

Pro/edure, (519= s, 996 0rovides that when an a//used is found to be a lunati/= he will

be released on bail 0rovided that suffi/ient se/urit- is iven that he will not harm

himself or another 0erson, If suffi/ient se/urit- is not iven or the /ourt thinks that

bail ma- not be ranted= the a//used will be detained in safe /ustod-, *ode of

*riminal Pro/edure= (519= se/tion 99( 0rovides that when an inquir- is 0ost0oned

under *ode of *riminal Pro/edure= (519= se/tion 9)2 and se/tion 9)5= the maistrate

will resume the inquir- at an- time after the 0erson /on/erned /eases to be of unsound

mind, The inquir- will 0ro/eed aainst the a//used when the maistrate thinks that he

is /a0able of makin the defen/e as 0er *ode of *riminal Pro/edure= (519= se/tion

99), *ode of *riminal Pro/edure= (519= se/tion 999 sa-s that when the a//used is at

the time of the inquir- is of sound mind= but he was of unsound mind at the time of

/ommittin the offen/e= the 4aistrate will 0ro/eed with the /ase, *ode of *riminal

Pro/edure= (519= se/tion 998 states that when an- 0erson is a/quitted on the round

that at the time of /ommittin the offen/e= he was b- reason of unsoundness of mind

in/a0able of knowin the nature of the a/t or that it is /ontrar- to law= the state will

s0e/if- whether he /ommitted the a/t or not, *ode of *riminal Pro/edure= (519=

se/tion 992 sa-s that when the 0erson detained under *ode of *riminal Pro/edure=

(519= se/tions 996@) or 99: and the ins0e/tor eneral /ertif- that in his 3udment= he

ma- be released without daner to himself or another 0erson= the state overnment:)"urin Marandi / anr. v. "tate of ,ihar= (511 *r,+,;, (51


28/52

ma- order him to be released or to be detained in /ustod- or to be sent to a 0ubli/

lunati/ as-lum,:9

The 0ro/edural interests of the a//used in India are thus monitored b- the *riminal

Pro/edure *ode,

:9ss, 9)2 995= 'ode of 'riminal $rocedure= (519,

)2


29/52

CHAPTER 2- MNAGHTEN RULES: MODERN

PERSPECTIVE

Insanit- in order to attain the stae of /riminal irres0onsibilit- the test

0res/ribed in the 47$ahten rules whi/h has been mentioned in the 0revious /ha0ter

on whi/h the Indian law is substantiall- based must be satisfied, These /entur- old

rules:8however were framed at a time when ver- little was known of 0s-/hiatr- and

the law and medi/ine was in areement as to what insanit- is, The basis of this

areement is the notion that the mind is divided u0 into various /om0artments some

of whi/h /an be diseased while the other remain inta/t, &owever in the liht of

modern 0s-/hiatri/ develo0ments= /riminoloi/al s/ien/e and /han/in /on/e0tions

of uilt= the /riti/isms and dis/ussions have assumed reat sinifi/an/e in re/ent -ears

and are a00li/able to Indian law, CUnsoundness of mind7 is as /ontroversial as

Cdisease of mind7 and is /a0able of different inter0retation, It /an have a la-man7s

meanin= a medi/al meanin and a leal meanin, From a la-man7s 0oint of view it

vauel- in/ludes an-thin from e//entri/ /ondu/t to ravin madness, 4edi/al men

are not satisfied with the leal definition of Cunsoundness of mind7, The /ourts also do

not /onsider ever- kind of mental illness or unsoundness of mind as leall-

sinifi/ant, *auht in the web of obsolete 47$ahten Rules the Indian law on

insanit- still har0s on the notions of the earl- nineteenth /entur- 0s-/holo- whi/h

/on/eived the brain as a bundle of fun/tions ea/h workin inde0endentl-, This

/on/e0tion nele/ts volitional and emotional as0e/ts of the mind, A//ordin to

modern da- 0s-/holo- and 0s-/hiatr- the mind /annot be s0lit into water tiht=

unrelated and autonomousl- fun/tionin /om0artments, %ver- /ase of unsoundness of

mind /annot therefore be fitted into the straiht 3a/ket of an ae old definition,::

Under Indian law= if the offender is sane enouh to 0er/eive the differen/e

between riht and wron with res0e/t to the a/t /ommitted and knows the a/t to be a

wron one he is held liable, The fa/t that an irresistible or emotional im0ulse

/onstrained him to /ommit the a/t will not be a defen/e, Onl- if the un/ontrollable

im0ulse results from mental unsoundness of a deree that im0airs the /onitive

:8R. v. MNaghten@(289= (6 *l, > F, )66= cited from*e/il= ;,B,= "upra4 n, 2,::$air= ?, Sadasivan,= "upra= n, (2 at 0, (:1,

)5


30/52

fa/ulties at the relevant time it /an be a defen/e, The underl-in 0rin/i0le for

eEem0tin the insane from liabilit- under Indian law is that he has no Cfree will7 to

/hoose between riht and wron, Under this /on/e0t of Cfreedom of will7 the non!

availabilit- of the defen/e of irresistible im0ulse is not 3ustified be/ause a 0erson

a/tin under an irresistible im0ulse has no freedom of will and it is not his will that

reulates his a/t but the im0ulse, The im0ulse is irresistible and the Cfree will7 to

/hoose between riht and wron is obviousl- absent, It is therefore un3ust for the law

to hold= a 0erson in su/h /ir/umstan/es res0onsible for his a/t,:


31/52

to law, The diffi/ulties in re/onisin lesser derees of mental disorder and the

demand for hih deree of 0roof the nature of whi/h is elusive and sometimes dul-

harsh from the 0oint of view of the abnormal offenders who ha00en to /ommit

offen/es in intri/ate situations of mental stress and disturban/e /reate unha00-

situations for the law-ers to avoid the 0lea of insanit- and instead take other 0leas to

avoid 0unishment,:5

A distin/tion must be made between insanit- affe/tin the /onitive fa/ulties

of a man and that affe/tin the will and emotions sin/e onl- the former falls under

se/tion 28, The sliht mental aberrations or 0roneness to wild tem0eraments do not

/ome within the 0urview of leal insanit-, Similarl- rea/tions that show eEtreme

deviations from re/onied norms or the more unusual= outlandish or irrational

behaviour su/h as 0artial delusions and hallu/inations ma- be a sin of medi/al

abnormalit- but not a s-mbol of leal insanit-, %s0e/iall- durin the modern da-

stressful lives that 0eo0le lead most 0eo0le suffer from emotional 0roblems= su/h as

fear of failure= worr- = h-0o/hondria= de0ression and aitation but the- are not insane

in the leal sense but if we look at the matter from the behaviour 0atholo- su/h a

0ersons 0s-/holoi/al fun/tionin ets im0aired to su/h a deree that he /annot meet

the ordinar- demands and eE0e/tations of dail- livin and it would be reasonable to

hold that the individual suffers from unsoundness of mind under se/tion 28,


32/52

knowlede is divor/ed from the rest of the 0ersonalit- and has no so/ial sinifi/an/e

or /onta/t with realit-,


33/52

(, That Cla/k of knowlede of the Cnature or qualit-7 of an a/t assumin the

meanin of su/h terms to be /lear or in/a0a/it- to know the riht from wron

is the eE/lusive most im0ortant s-m0tom of mental disorder

), That su/h knowlede is the sole instiator= uide of /ondu/t= or at least the

most im0ortant element and should be the sole /riterion of res0onsibilit-,

9, That in/a0a/it- of knowin riht from wron /an be /om0letel- inta/t and /an

fun/tion 0erfe/tl- even thouh a defendant is otherwise demonstrabl- of a

disordered mind,

The rules do not form a 3udment u0on definite fa/ts 0roved b- eviden/e= but

are mere answers to questions whi/h the 3udes were 0robabl- under no obliation

to answer as the- did not arise out of an- matter 3udi/iall- before the house, The

questions asked to the 3udes were restri/ted and were intended to /over onl- the

0s-/hosis in with onl- narrow manifestations of insanit- are the most strikin

s-m0toms,


34/52

an- marin of the unsoundness of mind affe/tin the Cemotions7 and Cwill7, The-

0rovide for onl- one t-0e of insanit- and do not make allowan/es for Cirresistible

im0ulses7, %ven thouh a 0erson ma- know the nature and qualit- of his a/t and

that it is morall- wron -et he ma- be in/a0able of restrainin himself from doin

it, &e ma- have lost the 0ower to /hoose between riht and wron and if the Cwill7

is destro-ed at the time of the a/t b- mental disease the a/t /annot said to be

voluntar- and he should be eEem0ted from 0unishment,1(

In (5:9= the Ro-al *ommission on *a0ital Punishment in its re0ort /on/luded

that the leal test of res0onsibilit- in the 47$ahten Rules bein so defe/tive

should be /haned,1)The /ommission suested an alternative in the event of

retention of the 47$ahten rules b- addin the words= Cor was unable to 0revent

himself from /ommittin it7= but this was said to have no value as felt b- eminent

0ersonalities in the medi/al and leal 0rofession, At the end of the twentieth

/entur- the 3udi/iar- b- /ontinuin to u0hold and a00l- the 47$ahten formula=

shows the hesitation of the 3udi/iar- to a//e0t new ideas and make advan/es in the

bran/h of 0s-/hiatr-, The law has to a00re/iate the ni/eties and te/hni/alities of

0s-/hiatr-, %a/h mental illness must be dealt with in detail and not dis/arded as

irrelevant merel- be/ause it ma- not be of a ver- severe order,19Sin/e there have

been /hanes brouht about b- medi/al advan/es the time is o00ortune for fresh

eEamination of the 0s-/hiatri/ as0e/ts of /riminal res0onsibilit- and law relatin

to insanit- defen/e in an effort to bride the ulf between medi/al and leal

insanit-,

1(

Sheldon lue/k Cethi/s 0s-/holo- and /riminal res0onsibilit- of insane, (8 *r +,R )621)H*a0ital PunishmentG= (5:9=Report of the Ro!al 'ommission40,((6,19Dabriwal= An3um,= "upra= n,5 at 0,:5,

98


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CHAPTER "- LEGAL INSANITY: A COMPARATIVE

ANALYSIS

The /ommon law 3urisdi/tions in U,S,A= U,K and India re/onise defen/e of

insanit- aainst a /hare of /rime, Re/entl-= the defen/e of insanit- in both the U,S

and U,K has underone /hanes and has been differin from the 47$ahten rules ,18

POSITION OF INSANITY IN ENGLAND

About a /entur- ao Ste0hen1:dis/ussed the /on/e0t of Cirresistible im0ulse7

and eE0ressed his views in favour of eEtension of the 47$ahten rules, The various

/ommittees made 0ro0osals to eEtend the s/o0e of the rules, In (5)) a /ommittee

under the /hairmanshi0 of +ord Atkin was set u0 to /onsider and re0ort u0on what

/hanes= if an- are desirable in the eEistin law= 0ra/ti/e and 0ro/edure relatin to

/riminal trials= in whi/h 0lea of insanit- a defen/e is raised, The- said that Cirresistible

im0ulses7 should be in/or0orated in the rules, In (5)8 +ord Darlin introdu/ed his

/riminal res0onsibilit- bill whereb- he souht to im0lement the re/ommendations of

Akin /ommittee but it met with no su//ess, A sele/t /ommittee on /a0ital 0unishment

in (59( said that the 47$ahten rules need to be revised to ive fuller s/o0e to

eneral medi/al /onsiderations and to eEtend the area of /riminal irres0onsibilit- in

the /ase of the mentall- defe/tive and those who labour under some distin/t form of

insanit-, The ro-al /ommission between(585!:9 also made suested a few /hanes

reardin eEamination of a//used= addition of a /lause Cin/a0able of 0reventin

himself from /ommittin it7, These re/ommendations ma- not have been ideal but it

was likel- that the- were most a//e0table to 3urists and do/tors than the suestion

that the rules be abolished,

I+*+5*) I46)+ T+5:

The irresistible im0ulse test /onstitutes little more than addin a third 0ron to

the 4L$ahtenMSe/tion ):@b test, The additional 0ron allows /ourts to find a

defendant insane be/ause of a volitional disorder= a disorder that undermines her

18

Pillai= K,$, *handrasekharan,= HInsanit- Defen/e in Ameri/a and India! A *om0arative OverviewG=inDelhi La- Revie-4 'ol, > I=@(52(= Del,+,Rev, 0, (18,1:Fit= Ste0hen ;ames,= "upra= n,


36/52

abilit- to /ontrol hisMher /ondu/t, This additional defen/e is available if the defendant

is unable to adhere to the riht as a result of irresistible im0ulse, As the testLs name

suests= this additional 0ron has /ome to be known as the irresistible im0ulse test,

The idea is that in order to be found insane= the defendant needs to have eE0erien/ed

an irresistible im0ulse to enae in the /riminal /ondu/t,

Sin/e the 0re/ise lanuae of the irresistible im0ulse test varies from

3urisdi/tion to 3urisdi/tion= the eEa/t terminolo- of the test is hard to define and

dis/uss, The three most 0o0ular forms of the test as follows. @(Bhen the defendant

a/ts from an irresistible and un/ontrollable im0ulse @) Bhen the defendant loses the

0ower to /hoose between riht and wron= and to avoid doin the a/t in question= as

his free aen/- was at the time destro-ed @9 Bhen the defendantLs will has been

otherwise than voluntaril- so /om0letel- destro-ed that his a/tions are not sub3e/t to

it= but are be-ond his /ontrol,

This test is usuall- /onstrued in strinent terms the defendant must be

/om0letel- de0rived of his 0ower of /hoi/e or volitional /a0a/it- to be ad3uded

insane,

Ste0hen thouht that this defen/e was in/luded in the 47$ahten rules and

inter0reted them in that sense, In R v. He!nes6: and R. v. ,urton66 the theor- of

irresistible im0ulse was 0ut forward but subsequentl- re3e/ted, In (5:9 the Ro-al

*ommission on /a0ital 0unishment /on/luded that the 47$ahten rules bein so

defe/tive should be /haned, The *anadian and a few Australian states follow the

"ritish law on the 0oint and do no re/onie irresistible im0ulse as a defen/e to

/riminal res0onsibilit-, "ut the test has been has been ado0ted in su/h 3urisdi/tions as.

*olorado ?eoria Iowa $ew 4eEi/o Oklahoma and 'irinia in the United States

of Ameri/a and the federal /ourts re/onise this defen/e,

The overnment in %nland then de/ided to eEtend the dis/retion of the 3ude

b- allowin a defen/e of diminished res0onsibilit-,12 Se/tion )@( of the "ritish

&omi/ide A/t (5:1 introdu/es the /on/e0t of diminished res0onsibilit-, A//ordinl-

if a 0erson /ommits a murder and suffers from mental abnormalit- that substantiall-

1 F


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im0airs his res0onsibilit- for the a/t= that 0erson would be uilt- of manslauhter and

not of murder, Thus= murder /ases fallin short of 47$ahten rules are /overed b-

se/tion )@( of the a/t, Bhen medi/al eviden/e shows that irresistible im0ulse is a

disease of the mind the /ourt /an infer su/h im0ulse as a eviden/e of the abnormalit-

of the mind as required b- se/tion )@( of the a/t, Therefore Cirresistible im0ulse7 a/ts

as a mitiatin fa/tor, This se/tion has introdu/ed into the %nlish law the S/ottish

do/trine of diminished res0onsibilit-,15"ut this defen/e is onl- available in murder

/ases, The defen/e of diminished res0onsibilit- was in/luded in the Sina0ore Penal

*ode under se/tion 966 as an eE/e0tion 'II to murder, The 0rovisions on diminished

res0onsibilit- in "arbados are similar with %nlish law, This do/trine does not find

favour under the Indian +aw,26The butler /ommittee 0ro0osed in (51: a rewritin of

se/tion ) of the &omi/ide A/t= (5:1, The /riminal law reform /ommittee 0ro0osal has

formed the basis of the definition of diminished res0onsibilit- in the draft of the

*riminal *ode "ill 0ublished b- the law /ommission in (52: in %nland, The butler

/ommittee 0ro0osed that a 0erson should not be /onvi/ted of murder if there is

medi/al or other eviden/e that he is sufferin from a form of mental disorder as

defined in se/tion 8 of the mental health a/t (5:5 and if in the o0inion of the 3ur-= the

mental disorder was su/h as to be an eEtenuatin /ir/umstan/e whi/h ouht to redu/e

the offen/e to manslauhter, The /ommittee also 0ro0osed that the burden on the

defendant should be limited to that of addu/in eviden/e to raise the issue= to

substitute Cabnormalit- of mind7 with Cmental disorder7,2( Thus se/tion ) of the

&omi/ide A/t= (5:1 does somethin to /om0ensate for the la/k of Can insanit-

defen/e that /an be used,7

15Tadros= 'i/tor,= HInsanit- and the *a0a/it- for *riminal Res0onsibilit-G= inEdin&urgh La- Revie-4

)8, %din,+,R, @)66(= 0, 9):,26;usti/e 'erma= ;,S,= K,D,?aur5"upra4 n,) at 0,)22,2($air= ?, Sadasivan,= "upra= n, :2 at 0, (2,

91


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POSITION OF INSANITY IN U.S.A

Durham Rule

The 0s-/hiatri/ develo0ments of the twentieth /entur- had its im0a/t in the United

States, In (5:8= in a /ase2)de/ided b- a /ourt of A00eal in the Distri/t of *olumbia= a

test 0o0ularl- known as the Durham rule was evolved, The test is that Can a//used is

not /riminall- res0onsible if his unlawful a/t was the 0rodu/t of mental disease or

mental defe/t,729Durham is /onsidered as a reat im0rovement over 47$ahten and

the irresistible im0ulse tests be/ause it makes medi/al testimon- on the defendant7s

mental disabilit- 0ermissible whereas a00li/ation of the 47$ahten rules limits

medi/al testimon- to the defendant7s /a0a/it- to make moral 3udments, The new test

in/luded definitions of Cmental disease7 and mental defe/t= it said that the 0rose/ution

has the burden of 0rovin be-ond reasonable doubt that the a/t was not the 0rodu/t of

su/h abnormalit-, This new test was to be used in addition to the 47$ahten rules,

&owever= this test was not followed in subsequent /ases, The US A00eal /ourts felt

bound b- the Criht and wron test7 ado0ted b- the U,S, Su0reme /ourt in Davis v.

0"=8on the lines of the 47$ahten rules or b- the 4odal Penal *ode ado0ted b- 0.".

v. 1reeman=9. The Durham rule suffered from man- weaknesses2


39/52

T, B' 6)#!

The "rawner Rule= from the /ase of 0nited "tates v. ,ra-ner=22b- the United

States *ourt of A00eals for the Distri/t of *olumbia *ir/uit= set aside the Durham

rulin aruin the rulin7s requirement that a /rime must be a H0rodu/t of mental

disease or defe/tG 0la/ed the question of uilt on eE0ert witnesses and diminished the

3ur-7s role in determinin uilt, Under this 0ro0osal= 3uries are allowed to de/ide the

insanit- question as the- see fit, "asin its rulin on the Ameri/an +aw Institute7s

@A+I 4odel Penal *ode= the /ourt ruled that for a defendant not to be /riminall-

uilt- for a /rime the defendant should @i la/k substantial /a0a/it- to a00re/iate that

his /ondu/t is wronful= or @ii la/k substantial /a0a/it- to /onform his /ondu/t to the

law,G

It is noteworth- that this /ase was @( de/ided b- the U,S, *ourt of A00eals

for the Distri/t of *olumbia /ir/uit and not the United States Su0reme *ourt= and is

thus not a national 0re/edent= and @) not based on /onstitutional aruments and was

thus su0erseded b- *onress in (528 with the Insanit- Defen/e Reform A/t of (528,

T, I'+'*5; D8'


40/52

The Ameri/an +aw Institute @A+I test ado0ted in (5


41/52

alternative verdi/t of Cuilt- but not mentall- ill7= alterin the allo/ation and quantum

of burden of 0roof and /hanin the substantive test of insanit-,

The mens reaMabolishnist a00roa/h58restri/ts the a/quittal to those /ases where

the defendants at the time of the offen/e was seriousl- mentall- ill that the- did not

have the requisite intent of state of mind to /ommit an illeal a/t, CThe 0lea of uilt-

but mentall- ill7 @?,",4,I 0rovides that a 0erson ma- be found uilt- if it 0roved

be-ond reasonable doubt that the defendant @i is uilt- of the offen/e /hared= @ii

was mentall- ill at the time of the /ommission of the offen/e and @iii was not leall-

sane at the time of the /ommission of the offen/e, &owever the main diffi/ult- with

the test is its inter!relationshi0 with the insanit- defen/e, The eihth amendment in the

U,S,A 0rovides= CeE/essive bail shall not be required= nor eE/essive fines im0osed=

nor /ruel and unusual 0unishments infli/ted7 this 0rovision is a00li/able to the states

throuh the fourteenth amendment, The re/ent 0ra/ti/e of abolishin the insanit-

defen/e has es/a0ed the views of this amendment= and the su0reme /ourt should a00l-

evolvin standards of de/en/- anal-sis from analoous /ases involvin mentall-

defi/ient offenders= and hold that the 0unishment of the insane is a violation of the

eihth amendment,5:

Thus the fo/us of attention for law reform movement takin 0la/e in the U,S

sin/e (52) has /learl- been on restri/tin the s/o0e and availabilit- of the insanit-

defen/e, In %nland the "utler= *,+,R,*, re/ommendations and new *riminal "ill

/ode in (52: have evoked 0ubli/ dis/ussion about the reform of insanit- defen/e and

diminished res0onsibilit- in %nland,

POSITION IN OTHER COUNTRIES

The *riminal *odes of man- /ountries 0rovide for a broader s/o0e for the

defen/e of insanit-, Tasmanian *riminal *ode= se/tion (< sa-s that an a//used ma-

not be 0unished if he ma- not understand the nature of the a/t or that it was aainst

law, The- ma- also not be 0unished if the- /ommitted the a/t under an Cirresistible

im0ulse7, Penal *ode of Fran/e= Arti/le


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havin been /om0elled b- a for/e whi/h he was not able to resist7, Swiss Penal *ode=

se/tion (6 states that Can- 0erson sufferin from a mental disease= idio/- or serious

im0airment of his mental fa/ulties= who at the time of /ommittin the a/t is in/a0able

of a00re/iatin the unlawful nature of his a/t or a/tin in a//ordan/e with the

a00re/iation ma- not be 0unished7,

In India however= the 0ubli/= 3urists= /ourts= overnment= law /ommission

seem to have been not suffi/ientl- /on/erned about the reform of law in this fields

ins0ite of 0roved failures in the 0ro/edural= evidentiar- and substantive law as0e/ts of

the insanit- defen/e,5


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CHAPTER %- SUGGESTIONS AND CONCLUSION

From the above /ha0ters we /an dedu/e that In Indian law= insanit- is

narrowl- inter0reted, 4an- 0ersons with medi/al /onditions whom we reard as

insane fall outside the s/o0e of the defen/e, The law relatin to the defen/e of insanit-

was ena/ted when law and medi/ine were in areement as to what insanit- is, "ut

with the 0assae of time 0roressive advan/ement was made in the field of s/ien/e

and 0s-/hiatr-= thereb- /hanin the medi/al views, The above anal-sis of the

defen/e of insanit- eEamined that while inter0retin se/tion 28 of the Indian Penal

*ode = the Indian law re/onises the traditional 47$ahten rules where onl-

im0airment of the a//used7s /onitive fa/ulties are taken into /onsideration there is

no enquir- into the deree to whi/h the a//used individuals self /ontrol is im0aired,

The a//used /an be /onvi/ted des0ite hisMher mental illness= if heMshe is /ons/ious of

the nature of the a/t he was doin,

The Indian /riminal law of insanit- in/or0orates the 0s-/holo- of the earl-

nineteenth /entur- whi/h believed that the mind is divided into watertiht= unrelated=

autonomousl- fun/tionin /om0onents, Presentl-= medi/al s/ien/es tea/h that the

mind /annot be s0lit into different /om0onents, In other 0arts of the world su/h as

%nland and Ameri/a various attem0ts have been made to sear/h for alternative tests

of res0onsibilit- under insanit-= but no su/h attem0t has been made in India to soften

the riour of the 47$ahten rules, The law so far /ontinues to adhere to the state of

mind of the offender Cat7 the time of /ommittin the a/t, The 0re/edin /ha0ters show

that the law in India has remained stati/ and the /ourts have not been able in view of

the statutor- 0rovision in se/tion 28 of the 0enal /ode to strike new round for its

inter0retation, "ut this does not mean that the 3udi/ial o0inion in India is not/ons/ious of the need for reorientation of the law on insanit- defen/e as dis/ussed

0reviousl-, &en/e= in order to eEonerate a 0erson from a /riminal a/t= the issue must

be widened so that somethin more than mere /ons/iousness of the 0h-si/al a/t= of

knowin its Cnature and qualit-7 and whether it was Criht or wron7 is iven due

/onsideration and a00re/iation, In this 0a0er= the resear/her under *ha0ter ( dealt

with the leal 0rovisions reardin insanit- in India, *ha0ter ) dealt with the modern

0ers0e/tive on the 47$ahten rules, A /om0arative anal-sis has been undertaken

under *ha0ter 9 and lastl- the 0resent /ha0ter will be dealin with the /on/lusion and

89


44/52


45/52

in/om0lete develo0ment of mind whi/h in/ludes severe im0airment of intellien/e

and so/ial fun/tionin, This however was not a//e0ted= even thouh in m- o0inion it

is a /om0rehensive and sound view,

Se/tion 1: of the Indian Penal /ode should also 0rovide for 0s-/holoi/al

s/reenin b- offi/ial eE0erts and if the- /ertif- that re0etitive behaviour in them is

due to diseased /ondition of the mind= then the /ourt should dire/t su/h individuals

for treatment rather than 0enalisation,

The law in se/tion 28= IP* should be re/ast to introdu/e the /on/e0t of

Cdiminished res0onsibilit-7 in res0e/t of all offen/es and not merel- in reard to

homi/ide as in the "ritish &omi/ide A/t= (5:1= whi/h la-s down that if it is

/onfirmed b- two or more offi/ial medi/o!leal eE0erts that the /riminal behaviour

thouh not arisin out of luna/- as in the 47$ahten rules was definitel- influen/ed

b- a diseased /ondition of the mind amountin to a mental abnormalit-= then the

0risoner ma- be /onvi/ted not of murder but of the offen/e of manslauhter whi/h is

/ul0able homi/ide not amountin to murder under the Indian law,

This /an be done b- addin an eE/e0tion to se/tion 966= where /ases fallin

short of 47$ahten rules would be in/luded,51

Se/tion


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To /all u0on the insane to dis/hare the onus of 0rovin irres0onsibilit- is

loi/all- absurd, An insane 0erson /annot be told to make use of his fa/ulties and

resour/es to dis/hare this burden to his advantae, In some Ameri/an states the

burden of 0roof in su/h /ases has been laid on the 0rose/ution,52This rule should be

followed in India, The allo/ation of burden of 0roof should be made more rational on

the basis of a fun/tionall- viable 0rudent man7s standard of eviden/e,

There are no 0rovisions in the *riminal Pro/edure *ode to deal with /ases

where the a//used be/omes insane at the time of the a00eal, The &ih *ourt 55has ot

the inherent 0ower to 0ost0one the hearin of the a00eal till sanit- returns, "ut in m-

view it will be safer to in/or0orate statutor- 0rovisions in the *ode, There are

loo0holes in se/tions 81( and 81: of the *riminal Pro/edure *ode, Under se/tion 81(

no mention has been made for as/ertainin if the defendant has reained his sanit-

and se/tion 81: does awa- with stri/t im0artial and s/ientifi/ enquir- about his

0resent mental /ondition before his release after re/over- of sanit-, S0eedier trials of

the insane offenders should also be made otherwise the insane will kee0 on

lanuishin inside 3ail, I feel that the insane offender should be ke0t in a se0arate

institution for observation till an- senten/e order is 0assed aainst him,

The Re0ort of the Ro-al *ommission on *a0ital Punishment= (5)9 suested

an alternative= in the event of retention of the rules= that is eEtendin the rules or

addition of the words Cor was unable to 0revent himself from /ommittin it,7 The

resear/her feels that the addendum is an am0le illustration of the inroads made b-

0s-/hiatr- into law,

Thouh the 4ental &ealth A/t= (521 has been leislated in India it has no

relation in determinin the deree of /riminal res0onsibilit- of mentall- disordered

offenders, $o 0erson should an- loner re/eive 0unishment for bein mentall- ill or

disordered, Partl- disordered is also disordered= 0artial illness is all the same illness,

+aw ma- rest /ontent b- 0unishin su/h offenders under the 0resum0tion of sanit-

demandin hih deree of 0roof= but it /annot /laim to have done 3usti/e in su/h

/ases,

52

"hatta/har-a= ",K,= 3nsanit! and 'riminal La-4 S,*, Sarkar > Sons Pvt, +td,= *al/utta= @(5:


47/52

In Ameri/a also 0resentl- there is no uniform insanit- test used a/ross the

nation(66, The A+I rule seems to be lenient and in /onsonan/e with s/ientifi/ theories,

&owever the ado0tion of a uilt-!eE/e0t!for!insanit- @?%I verdi/t and the /reation of

a mental health senten/in board will /onstitutionall- ensure that mentall- ill

offenders are senten/es a00ro0riatel- and re/eive the treatment ne/essar- for them to

return to so/iet- as 0rodu/tive members, Under this insanit- test the defendants would

be found uilt- of /ommission of the underl-in /rime eE/e0t for insanit- if the-

were unable to /onform to the law @volitional im0airment or a00re/iate the

/riminalit- of their /ondu/t @/onitive im0airment due to a mental illness of defe/t

0resent at the time of the offen/e, This verdi/t avoids eE/lusive /onitive or volitional

insanit- tests, This ?%I verdi/t would dis0el an- /hallenes to the siEth amendment in

Ameri/a whi/h uarantees that a /riminal defendant7s uilt will be determined b- a

la- 3ur- of his 0eers, If this verdi/t is ado0ted there will be assuran/e of reater

uniformit- in insanit- determinations and is an im0ortant suestion to bear in mind

in res0e/t with Indian law, *reation of a 4ental &ealth Senten/in "oard that deal

with the treatment and monitorin of mentall- ill offenders /an also be /onsidered, In

Ameri/a the view is that so/iet-7s taE dollars would be used more 0rodu/tivel- for

treatment initiall- rather than for re0eat in/ar/eration of untreated mentall- ill

offenders, This s-stem advo/ates thera0euti/ 3uris0ruden/e, This board will be able to

handle all mentall- ill offenders reardless of the deree of /rime for whi/h the- stand

a//used but will not have the authorit- to deviate from the outer boundaries of the

3ur-7s 0res/ribed senten/e so as to be free from 0roblems reardin

un/onstitutionalit-, The state of Oreon in Ameri/an has im0lemented a similar

s-stem and has alread- re/eived hih amounts of 0raise, *reation of this board would

also ensure more eE0ert and effe/tive treatment de/isions are made, The fundamental

notions of the /riminal 3usti/e s-stem would be u0held b- this s-stem and mentall- ill

offenders would re/eive a valid senten/e that is 0ro0ortional to their deree of

/ul0abilit-, This suestion /an be taken into a//ount under the Indian law, &en/e=

this 0roves m- h-0othesis,

The law is dealin with a ver- s0e/ialised bran/h of s/ien/e= one with whi/h it

is vauel- if at all familiar, Be have to interate the 0roress of 0s-/hiatr- with the(66?ra/hek= %,;ulie,= "upra= n, 29 at 0,2,

81


48/52

law of mental disorder so as to /lose or at least minimise the 0s-/hiatri/o!leal

/ommuni/ation a0 on the question of insanit- defen/e, It is true that the defen/e

suffers from a lare number of handi/a0s as I have /losel- eEamined above= -et there

is no runnin awa- from the fa/t that without the insanit- defen/e= lare number of

0eo0le with low or no /ul0abilit- shall be haned, It is im0erative that the defen/e be

reformed on the lines suested above else an essential and benefi/ial feature of

/riminal 3uris0ruden/e will sim0l- /rumble into the ruins of an outdated theor-,

82


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BIBLIOGRAPHY

"OOKS

(, Allen= 4i/hael ;,= )e+t&ook on 'riminal la-= OUP OEford +td,=

1th ed,= @)669,

), "urdi/k= B,4,+,= )he la- of 'rimes4 4a/kin "ender > *om0an-

In/or0,= $ew #ork= 'ol I= @(58

4aEwell +td,= :thed, @(255,

5, &uda= Shamsul,= )he principles of the la- of crimes in ,ritish

3ndia= "utterworth Publi/ations= *al/utta= (56) re0rinted in (52),

(6, ;usti/e Thakur= *,K,= Ratanlal / Dhira%lals La- of 'rimes4

"harat +aw &ouse= $ew Delhi= 'ol I= @)661,

((, ;usti/e 'erma= ;,S,= K,D,?aur. 'ommentar! on 3ndian $enal

'ode4Universal +aw Publishin *o, +td,= $ew Delhi= @)66


50/52

(8, Sinh= Avtar,= )he la- of Evidence= (:th ed,= *entral +aw

Publi/ations= @)66:,

(:, )he 'ode of 'riminal $rocedure4(519= Universal +aw Publishin

*o, Pvt, +td,= @)66


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1, Das $ibedita HInsanit- and the +awG= 'riminal La- 2ournal4

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Documents

The DEFENCE of INSANITY- Comparative Analysis a Need for Reform