[ad_1]
I. Introduction
The Intent and motives that propel an individual to indulge in
criminal activity are the centre of the study of criminal law and
criminology. The nature of this intent and motive and the abilility
of its formation as such, is often not In question and a trial
conducted for deciding the culpability of an accused is in most
instances a matter of legal evidence. However, it is pertinent to
note that the ability of an accused; affected by neurological and
psychological limitations; to form balck and white motives and
intentions is debatable. Investigating a crime which involves a
suspect with history of mental illness invites several grey areas
which require the intervention of experts in the field.
Forensic psychiatric experts offer critical insight into
deciphering the context to any criminal conduct and actions of a
mentally incapicated individual, thus paving a way to establish
stonger evidence or weaking the evidentiary value of existing
evidence. However, at the stage of investigation their involvement
is limited and completely dependent on whether the investigating
agency calls for their expertise.
II. Investigating Probable Intent- Mens Rea
The concept of responsibility and Mens Rea form the
fundamentals of the Penalisation of convicted offenders and their
possible rehabilitation. Punishing someone who is innocent or even
someone who has a reasonable possibility of being innocent is a
violation of basic human rights1. The assessment of an
individual’s psychological makeup can be indicative of two
directions of clinical evaluations2 , in either establishing that
certain sub-psychotic tendencies aggravate the possibility of the
commission of the crime or second that the individual is not
capable of forming a rational and conscious decision to commit a
crime3. In either case, in a criminal
trial the question of if clinical psychological assessment is
or should be called upon for commenting upon the
psychological state of an accused and narrowing the purview of the
trial, is mostly subject to the invocation of insanity defense
under Section 84 of the Indian Penal Code, 1860
(“IPC“).
III. Existing Standards of Practic
1. Historical Models
Insanity defense has been in existence since many centuries;
however, it took a legal position only since the last three
centuries. There were various tests relied upon by Indian
Psychiatrists used to declare a person legally insane such a Wild
Beast test4, The Insane Delusion test5, and
“test of capacity to distinguish between right and wrong6.”
These three tests laid the foundation for the landmark Mc Naughten
rule.
2. Expert Witness under Indian Evidence Act, 1872
In India, barring the insanity defence outlined in Section 84 of
the Indian Penal Code7, forensic psychiatrist experts are
not often put under the spotlight in a criminal trial. However, the
moment an accused invokes his defense under Section 98 of the
Indian Penal Code, the forensic psychiatrist expert is empowered
with influencing the evidence in his capacity as an expert witness
before the court under Section 45 of the Evidence Act, 1872
(“Evidence Act“). The training for and
the existing regulatory guidelines governing practice of forensic
psychiatric experts in India is virtually non existent. However,
there are certain codes of conduct that have evolved over time
which guide such experts in their conduct.
Under the Evidence Act an expert witness under Section 45 of the
Act may testify to either a fact or to their opinion in a filed of
expertise. A forensic psychiatrist expert may either be a a
fact witness or an expert witness. The role of
the forensic psychiatrist is to “assist the trier of fact
to understand the evidence or to determine a fact in issue.”8
When a court trying an offence is faced with the questions
revolving around the insanity defence it may call upon a forensic
psychiatric expert to be a an expert witness when it needs
a deeper understading and technical knowledge on the specific
psychological subject. On the other hand, when the court requires
the psychiatrist to testify as to the mental competence of the
Accused persons or suspects, the psychiatrist has to opine as to
such fact and is deemed a fact witness. Both testimonies
only assist the court in reaching its own independent conclusion as
to the culpability of an individual.
Indian Courts have always valued the expert opinion of a
psychiatrist when it comes to opining upon the mental condition of
an accused whose psychological health is in question. The
Hon’ble Madras High Court in a case involving a concivt accused
of murder u/s. 302 and sentenced to life, while heavily relying
upon the testimony of the psychiatric expert, acquitted the Accused
and directed him to be placed in a mental health facility for
treatment.9
In another case of murder u/s. 302, the Hon’ble Bombay High
Court acquitted the Accused, who according to the report of the
Medical Officer at the Prison, was mentally infirmed. The
Hon’ble High Court noted that the investigating officer failed
to produce the report of the psychiatrist who had examined the
accused and accordingly the benefit of the doubt favoured the
Accused.10
3. Mc Naughten rule and Section 84, Indian Penal
Code.
The Mc Naughten Rules (the “Rule“)
stem from an age-old case of delusion and confusion marking a
culmination in the development of law of insanity in common law.
For the first time the court decided to employ an unusual procedure
to ascertain the law on the subject. A summary of the same has been
briefly set out as under;
- Accused is sane unless otherwise proved
- The accused must have been operating under the defect of his
insanity at the time of commission of the crime - If the accused, at the time of commission of the crime, was
aware of the fact that the act he is doing is in fact a crime, he
is punishable - Partial delusion is to be treated as Clinical Delusion
Forming a vast based precedent in common law countries,
primarily due to lack of any institutionalized alternatives, the
McNaughten rules became the letter of the law at the time and also
formed the basis of Section 84 of IPC11. Despite an
attempt by the Law Commission of India to revisit the provision in
its 42nd Report, the Provision remains unchanged and
outdated. The section embodies the maxim ‘Furiosi nulla
voluntas est” meaning that a person with mental illness
has no free will12.
4. Assessment Models
The only somewhat standardized tool of forensic assessment which
is used for psychiatric evaluations to be submitted before Courts
is the ‘Forensic psychiatry assessment proforma’. This
National Institute Mental Health and Neurosciences offers a
‘Detailed Workup Proforma for Forensic Psychiatry
Patients-II‘ which is used in the Institute since many
decades for semi structured assessment of forensic psychiatric
cases13. This is revised from time to
time to suit evolving legal requirements.
IV. The Applicable law and Burden of Proof
The rule and by extension Section 84, both ascertain that if a
person is capable of distinguishing between right and wrong, then
his culpability is frozen14. However, as per the study and
knowledge of several legal as well Psychiatric scientists it is a
well-known fact that “insanity does not only, or primarily
affect the cognitive or intellectual faculties, but affects the
whole personality of the patient, including both the will and the
emotions15.
However, what is the focus of a Court of Law is ‘Legal
insanity’ and not ‘medical insanity’. Legal insanity
concerns itself with the psyche of an accused at the time of
commission of offence and nothing else.16 Thus when an
Accused claims the defence under Section 84 of the IPC he
introduces a second facet to the criminal proceedings, that being
proving his incapacity. While the burden of proof to prove that an
accused committed the offence beyond the reasonable doubt lies with
the prosecution, the burden to prove that the Accused was
incapacitated with his insanity making him qualified u/s. 84, lies
on the Accused. The insanity defence is not for the prosecution to
disprove but rather for the Accused to establish with utmost
certainty.
V. Duties Of Forensic Psychiatrist Experts
The field of psychiatry and the law, along with the rest of
medicine, is increasingly using an evidence-based approach17.
Evidence-based medicine is defined by Sackett et al. as “the
conscientious, explicit, and judicious use of current best evidence
in making decisions about the care of individuals”. Sackett
and collaborators made the point that all clinical assessments are,
to a certain extent, individualized, based on the unique factors of
each case18
For all those who plead insanity, standard procedure is
absolutely necessary, one which sadly does not exist in India.
However, the evolved role and duties of forensic psychiatrists have
come in to being through judicial rulings and guidelines which are
detailed as follows:
- The psychiatrist has a duty to educate the court and clarify
issues with all honesty and objectivity19. - The Psychiatrist must review all accompanying legal documents
and ascertaining authority including all accompanying evidence20. - As in any forensic and clinical evaluation, the offender must
be interviewed at the earliest stage21. Expert must have
a detailed note on the history of illness, substance abuse, trauma
and child trauma22. - By employing open ended questions and specific
incident-oriented hints the Accused must be aided to give the time
to time account of the incident23. The comprehensive inquiry
should be done on his cognition, behaviour, emotions, and
perception, prior, during, and immediately after the commission of
the offense24. - The most important deduction of this entire process is the
formation of the opinion of whether the Accused could know if the
act he was doing was in fact right or wrong, something which proves
to be the most difficult task for a psychiatrist25. - Final diagnosis of the Psychiatric health of the defendant26.
VI. Conclusion and Recommendations
As opposed to the United States there are no formal specialities
in the field of Forensic Psychiatry in India. The training of the
same is scarce and unsourced. Every case and investigation
involving a Forensic Psychiatric Opinion is not without fault or
grey areas, which is a grim reality in the Indian Criminal justice
system. Thus, the following recommendations are made:
- Revisiting the concept of criminal responsibility and thus
amending Section 84 of the IPC, specifically to eliminate drawing
the conclusion of “Right” or “wrong”. - In order to amend the Penal provision, there must be more
reliance on Experts in forensic Psychiatry and Scholars with
extensive research and Practice in the field. - Experts in the field need to be trained in India. To adapt a
formal manual compiled with Sociological and Psychological
considerations which dissects every possible theoretical aspect of
Forensic Psychiatry along the lines of the American Journal of
Psychiatry and Law. - To Develop Forensic Psychiatry Training centres to teach Legal,
forensic as well as clinical considerations. - Licensing certain niche psychiatrist who are experienced enough
to provide an opinion, varying on the degree of severity of crime,
the gradient of license must vary.
The Landscape for Forensic Psychiatric Experts is very ambiguous
and dark. There lacks a good law, good research and good sources to
build a strong system. With extensive academia on the matter and
several researchers emphasizing upon the need for revisiting the
entire procedure as well as heavy international material being
present, it is time for sociologists and psychologist to marry
their expertise to create target precedent on the matter which will
help reduce the doubt that comes with deciding culpability of a
suspect.
BIBLOGRAPHY
Articles
- ‘Insanity Defense: Past, Present, and Future’,
Suresh Bada Math, Channaveerachari Naveen Kumar, and Sydney
Moirangthem, Indian J Psychol Med. 2015 Oct-Dec; 37(4):
381–387. doi: 10.4103/0253-7176.168559 - ‘Insanity Defense Evaluations – Basic Procedure and
Best Practices’ By James L. Knoll IV, MD and Phillip J.
Resnick, MD Dec 2, Psychiatric Tims , Vol. 25 Issue 14 (2008). - ‘The Quality of Forensic Psychological Assessments,
Reports, and Testimony: Acknowledging the Gap between Promise and
Practice’: Robert A. Nicholson and Steve Norwood Source:
Law and Human Behavior, Vol. 24, No. 1, Advances in Assessment and
Treatmentof Forensic Populations (Feb., 2000), pp. 9-44. - ‘DEFENCE OF INSANITY IN INDIAN CRIMINAL LAW’:
K. M. Sharma Journal of the Indian Law Institute, Vol. 7, No. 4
(OCTOBER-DECEMBER 1965), pp.325-383. - ‘Forensic evaluations in psychiatry‘, R. K.
Chadda, Department of Psychiatry, All India Institute of Medical
Sciences, Ansari Nagar, New Delhi, India (2013)
Footnotes
1. Morse
SJ, Bonnie RJ. Abolition of the insanity defense violates due
process. J Am Acad Psychiatry
Law. 2013;41:488–95.
2. Gostin
LO, Larry OG. A Human Condition: The law relating to mentally
Abnormal Offenders. Vol. MIND; 1977.
3.
Neville K. The Insanity Defense: A Comparative Analysis Senior
Honors Theses. Paper 244. 2010.
[Last accessed on 2014 Nov 05]. Available from:
http://www.commons.emich.edu/cgi/viewcontent.cgi?
article=1219&context=honors .
4. R. v.
Arnold. 1724, 16 St.Tr.695. Also see Lord Ferrer’s case 1760,
19 St.Tr.885.
5.
Hadfield Case. 1800, 27 St.Tr.128.
6.
Bowler’s case. 1812, 1 Collinson Lunacy 673
7. Gaur
KD. Textbook on the Indian Penal Code. New Delhi: Universal Law
Publishing; 2009.
8.
Testimony by experts: rule 702. In:Federal Criminal Code and
Rules. St Paul: West Publishing; 1995:263.
9.
Paneerselvam v. State Criminal Appeal (MD) No. 317 of
2016
10.Sagar Dwarakanath Patil v. The State Of
Maharashtra Criminal Appeal No.1357 OF 2012
11.
Ranchhoddas R, Thakore DK, Manohar V. Ratanlal &
Dhirajlal’s the Indian Penal Code. Gurgaon:
LexisNexis; 2013.
12.
Bapu @ Gajraj Singh vs State of Rajasthan. Appeal (crl.) 1313 of
2006. Date of Judgement on 4
June, 2007
13.
State of Rajasthan v. Shera Ram @ Vishnu Dutta. 2012,
1SCC602.
14. R.
v. True [1922] 16 Crim. App. R. 164;
15.
Friedmann, Law in a changing society 167 et seq.
(1959)
16.
Surendra Mishra v. State of Jharkhand. 2011, 11 SCC
495.
17.
Glancy GD, Saini M: The confluence of evidence-based practice and
Daubert within the fields of forensic psychiatry and the law. J Am
Acad Psychiatry Law 37:438–41, 2009
18.
Sackett DL, Straus SE, Richardson WS, et al: How to practice and
teach EBM. New York: Churchill Livingstone, 2000
19.
Dahyabhai Chhaganbhai Thakker v. State of Gujarat. 1964, 7SCR
361.
20.
Hari Singh Gond v. State of Madhya Pradesh. 2008, 16 SCC
109.
21.
Sudhakaran v State of Kerala. 2010 (10) SCC 582.
22.
Kumar D, Viswanath B, Sebestian A, Holla B, Konduru R,
Chandrashekar CR, et al. Profile of male
forensic psychiatric inpatients in South India. Int J Soc
Psychiatry. 2014;60:55–62
23.
Supra, note 13
24.
Elavarasan v State RbIoP. 2011 (7) SCC 110.
25.
Anandrao Bhosale v. State of Maharashtra. 2002, 7 SCC
748.
26.
T.N. Lakshmaiah v. State of Karnataka. 2002, 1 SCC 219.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
[ad_2]
Source link