Introduction
The field of criminal justice is tasked with the daunting challenge of establishing individual culpability for criminal acts that are detrimental to society. The existing criminal justice system assigns the responsibility to the prosecution to demonstrate that the accused has committed the criminal act beyond a reasonable doubt. However, specific factors, such as insanity under Section 84 of the Indian Penal Code, 1860Footnote 1 (IPC) and, currently, Section 22 of the Bharatiya Nyaya Sanhita, 2023Footnote 2 (BNS), may absolve an individual of criminal culpability. The primary inquiry thus emerges regarding whether the perpetrator has complete control over the circumstances during the commission of the offence. If not, what factors influenced an individual’s behaviour, and how might this be factored into determining their culpability? These inquiries prompt a re-evaluation and analysis in light of contemporary advancements in neuroscience concerning diminished responsibility or mitigated culpability.
Neuroscience has evolved to elucidate the neural foundations that characterize criminal predispositions. An investigator may subsequently analyse the biological, psychological and socio-economic factors influencing human behaviour and decision-making; once these dimensions are comprehended, we are better equipped to predict the triggers and motivating factors of criminal behaviour.
This paper seeks to explore the neurological factors that contribute to criminal behaviour, challenging the prevailing notion of individual choice and responsibility. The aim is to advocate for re-evaluating the legal norms and principles concerning criminal culpability. In addition to absolving or mitigating a criminal’s culpability, it aims to theorize and comprehend the intricate array of circumstances that contribute to criminal behaviour. This paper will facilitate the development of more effective crime prevention and rehabilitation programmes. Identifying and understanding the core causes of criminal behaviour enable policymakers and law enforcement to implement targeted measures aimed at reducing crime rates and enhancing societal rehabilitation. Essentially, the paper seeks to integrate scientific findings from neuroscience into the legal framework to enhance the understanding of criminal behaviour and culpability.
The existing legal framework that assesses an individual’s culpability for illegal acts is exclusively founded on traditional notions of free will and personal responsibility. Recent advancements in neuroscience have contested these assumptions. The existing legal framework relies on the presumption that individuals are entirely accountable for their acts, disregarding the significant impact of neurological factors that may predispose them to criminal behaviour. This antiquated norm may result in inequitable or unjust outcomes in adjudication.
Insanity is narrowly defined in Section 22 of the BNS (formerly Section 84 of the IPC) as an inability to comprehend the nature of one’s actions. The definition fails to recognize that certain mental disorders or neurological triggers may induce criminal behaviour in various groups of individuals. It is essential to understand neurological triggers for criminal tendencies, as well as socio-economic factors that exacerbate them, to address this gap. This will expand the scope of Section 84 of the IPC and Section 22 of the BNS, while also acknowledging partial mental impairments, therefore facilitating a liberal approach to mental health issues related to criminality. Finally, it is essential to comprehend the relationship between these neurological triggers and diminished responsibility, as well as their implications on the mitigation of culpability.
The determination of culpability is inherently complex, leading to significant ambiguity. Judges employing varying theories of punishment may utilize distinct standards in evaluating culpability. This frequently results in inconsistent legal decisions and sentencing outcomes. The absence of a standardized method for incorporating neurological factors in culpability assessments may result in inconsistencies within the criminal justice system. The omission of neuroscientific evidence in assessing culpability may result in convictions founded on insufficient elements of crime, especially for individuals with mental disorders, brain injuries, or other neurological or psychological conditions. The absence of a comprehensive approach to evaluate the factors influencing criminal behaviour may result in unjust convictions, imbalanced sentencing and ineffective rehabilitation efforts. A conviction that disregards neurological factors influencing criminal behaviour may hinder the development of effective rehabilitation and prevention strategies. This results in overcrowded prisons without any significant enhancement.
Thus, this paper aims to explore the integration of neurological triggers for assessing criminal tendencies, contributing to a more just and concrete legal framework that reflects our evolving understanding of the human brain’s role in criminal behaviour.
Reappraisal of the Concept of the Insanity Defence in India
The insanity defence is predicated on the premise that mental disorders can impair an individual’s capacity to comprehend the nature of their conduct or distinguish between right and wrong. In India, the legal foundation for insanity is established in Section 84 of the IPC, and now under Section 22 of the BNS, which is a literal reiteration of the former, preserving the existing definition of insanity. Section 84 of the IPC and Section 22 of the BNS encapsulate the M’Naghten Rules.Footnote 3 This section addresses criminal liability in relation to mental illness. It explains that an act would not amount to an offence if the person doing it was insane at the time of commission, or if he was incapable of knowing the nature of the act, or unable to discern right from wrong. This elucidates that certain types of mental illness, which impair cognitive abilities, may be regarded as a legitimate legal defence within the criminal justice system (Asokan Reference Asokan2007:223).
Following the landmark acquittal of Daniel M’Naghten,Footnote 4 the House of Lords posed specific enquiries to the judges; the responses to these enquiries established the foundation of this legal doctrine in criminal law. It posits a presumption of sanity and sufficient reasonability, rendering an individual accountable for their actions until disproven. The common-law system distinguishes between sane and insane automatism, with the former arising from external factors and the latter from internal factors. For instance, epilepsy was considered an internal factor, aligning with the M’Naghten criteria.Footnote 5 The insanity defence requires reform due to advancements in our understanding of the brain and its biological factors in attributing responsibility for actions. Arguments exist that current legislation inadequately comprehends the severity of mental disorders, particularly psychiatric conditions. Furthermore, there is a focus on acknowledging diminished responsibility in India, which mitigates absolute culpability and recognizes partial accountability owing to cognitive impairment resulting from a real medical condition (Math, Channaveerachari, and Moirangthem Reference Math, Channaveerachari and Moirangthem2015:381).
Re-evaluating the insanity defence in India is essential not just to clarify the offender’s mental condition but also to align Indian law with international standards and to foster a more empathetic, scientific understanding of insanity. In re-examining insanity as a defence, it is essential to review existing legislation and significant legal rulings and assess whether acknowledging diminished responsibility would be advantageous or detrimental.
Background of the Insanity Defence
As for the defence of unsoundness of mind, Macaulay’s Draft Code of 1837 directly influenced the IPC’s provision (Roy Reference Roy2023). In his Introductory Letter, Macaulay noted that the Penal Code for India, which he proposed, was not borrowed from a particular legal system, but rather a much better version of English law in 1830. He acknowledged the French Penal Code of 1810 and Edward Livingston’s Louisiana Penal Code of 1826 (Ferguson Reference Ferguson, Chan, Wright and Yeo2016a:255). These sources supported his English common-law defence of insanity. Infants, idiots and lunatics were long thought to lack sufficient reason to be appropriately convicted and punished under English common law (Clemente Reference Clemente2015:2775). Accordingly, Macaulay included conditions of “incapacity to know” in his draft code and “insane delirium” at the time of the act that prevented conviction (Ferguson Reference Ferguson, Chan, Wright and Yeo2016a:255).
Macaulay’s draft clauses, among which was Clause 67, which reflected similar provisions of the French and Louisiana codes, stated that “no act committed by a person in a state of madness can be considered as an offence”. Macaulay thought these clauses were apparent and did not include illustrations or detailed notes. Section 84 of the IPC, based on the 1843 M’Naghten Rules, replaced Clause 67. After Daniel M’Naghten’s acquittal due to a plea of insanity, the legal standard for insanity was clear proof that the accused was in a state of severe deficiency in apprehension of result caused by disease of the mind and unable to comprehend the wrongfulness of the act or the nature of the subsequently committed act (Strom Reference Strom2023).
Before the M’Naghten Rules, the English common-law standard for insanity was strict; the accused would be in a state as that of a wild beast (Allnutt, Samuels, and O’Driscoll Reference Allnutt, Samuels and O’Driscoll2007:294). This extremely severe standard was illustrated in noteworthy cases, including R. v. Arnold Footnote 6 and R. v. Ferrers,Footnote 7 although sympathetic judges might mitigate its harsh application. The case of R. v. Hadfield Footnote 8 in 1800 then diverged from this principle, acknowledging that an accused person could be mad if they acted under an insane delusion, even if they were not completely ill. This relatively complex definition of insanity was even more defined in the M’Naghten case to give the world the legal M’Naghten Rules (Bewley Reference Bewley2008:94).
The M’Naghten Rules shaped the world’s rule of law on the insanity defence, including India. These focused on decisional capacity and excluded dispositional incapacity in the insanity defence. The English Criminal Law Commissioners’ 1843 and 1846 reports accepted these notions, like the IPC now under the BNS. The Commissioners’ proposed articles applied the two-form test of insanity, which states that the accused cannot know the nature of their actions or cannot understand that it is against the law. Act IV of the Legislative Council of India in 1849 shaped the insanity defence by stating that no person shall be acquitted on the grounds of unsoundness of mind unless it is proved that the accused was unsound at the time of committing the act and the offence was not wilfully provoked by him and he was unconscious enough to know what he was doing was wrong. As with most mental impairment provisions in the Act, this clause did not have extensive legislative background papers, but it did have the M’Naghten Rules’ strict test.Footnote 9 As with the English law and Macaulay’s draft code, the IPC sets high qualifications for the insanity defence, limiting its application to people who were devoid of reason at the time of committing the offence (Soumya, Misra, and Surendranath Reference Soumya, Misra and Surendranath2021:197).
The Pre-existing Ambit of Section 22 of the Bharatiya Nyaya Sanhita
According to Section 22 of the BNS (formerly Section 84 of the IPC), an act of a person is not an offence, who at the time of doing the act by reason of or being in a state of mental illness was incapable of knowing the nature of the act or that it was wrong or unlawful. This provision of the code has remained unaltered despite its proclamation in 1860. In contrast to Singapore, which enacted the partial defence of diminished responsibility in 1961, India and Malaysia have not implemented any similar amendments (Ferguson Reference Ferguson1990:11). The Indian criminal justice system marked a significant shift after the introduction of three criminal law bills, namely, the BNS, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam (Madhavan Reference Madhavan2023). The justification provided for the reintroduction of India’s criminal laws is primarily rooted in the government’s attempt at decolonizing its previous statutes (Ali, Vashist, and Ghose Reference Ali, Vashist and Ghose2024). This theory of decolonization, however, gets displaced by the nature and definition of various offences being replicated from their colonial versions (Ali and Mukhopadhyay Reference Ali and Mukhopadhyay2024:4). One such colonial continuity is reflected in the concept of “unsoundness of mind” as a defence.
Section 22 of the BNS (formerly Section 84 of the IPC) deals with “unsoundness of mind”, rather than “insanity”; however, it is referred to as the insanity defence by judges and experts on the subject. The drafters of the IPC likely used this term due to its simplicity compared to the more complex language found in the M’Naghten Rules regarding insanity and the defect of reason stemming from mental illness. Section 84 parallels the M’Naghten test, implementing the assessment in relation to both moral and legal wrongs. Nonetheless, it differs from the M’Naghten Rules, and courts in India, Malaysia and Singapore have at times erred in their application of English case laws regarding the M’Naghten Rules, mistakenly believing that Section 84 aligns with them (Phang Reference Phang1995:315).
The IPC employs the pro forma “Nothing is an offence”, which fails to distinguish between justifications, such as in cases of self-defence, and excuses like insanity. This necessitates certain provisions, such as Sections 98 and 108 of the IPC, to address the acts performed by an insane person or when a person defends against an attack on themselves, resulting in murder. The legal defence of unsoundness of mind is specified in Section 84. Nevertheless, the components of the defence are not delineated, resulting in their legal status being a matter of judicial contention, as is the extent of the defence (Math et al. Reference Math, Channaveerachari and Moirangthem2015:385).
Unsoundness of Mind
The concept of unsoundness of mind remains undefined in the IPC, even in the BNS, and has not been thoroughly elucidated in the case laws of India, Malaysia and Singapore (Ferguson Reference Ferguson1990:12). The definition should be legal rather than medical, and it ought to be sufficiently broad, excluding only those mental disabilities that the law intentionally seeks to exempt from the application of the insanity rule (Briggs Reference Briggs1923:64). In determining circumstances in which an individual may be considered exempt from criminal liability on the grounds of insanity, legal and ethical considerations take precedence over medical factors. Assessing the defendant’s mental condition is a crucial medical consideration in establishing criminal liability; however, the final decision is a legal and ethical matter (Meynen Reference Meynen2013:94).
The term “unsoundness of mind” is broadly articulated, encompassing several forms of impaired mental functioning relevant to the insanity defence, particularly focusing on the effect of the disability on the accused’s functioning. The Supreme Court of Canada defines it in R. v. Cooper Footnote 10 as “any affliction of the mind’s workings”, excluding external influences like alcohol and narcotics, as well as transient disorders such as hysteria and concussion. This term, therefore, incorporates the legal principles established in the R. v. Sullivan Footnote 11 decision, which precludes self-induced intoxication as a defence. Certain forms of temporary insanity defences, such as those arising from the influence of alcohol and other substances, are barred under insanity regulations and are instead adjudicated under different provisions (Ferguson Reference Ferguson, Chan, Wright and Yeo2016b:263). Nonetheless, if the after-effect induces a permanent condition such as “delirium tremens”, it may be classified as a mental illness for the purpose of an insanity defence (Carter-Yamauchi Reference Carter-Yamauchi1998).
Automatism
A fundamental principle in criminal law is that an act cannot be deemed unlawful if executed without the actor’s volition; thus, there must be a voluntary physical action or omission. Automatism denotes a condition in which an individual executes motions in a specific manner without the capacity to control such actions (Edwards Reference Edwards1958:377). Consequently, the act cannot be classified as a criminal offence and, therefore, is not subject to punishment. The primary issue in this domain is defining the terms “disease of the mind” and “unsoundness of mind” to differentiate between cases of insane automatism, which warrant a defence of insanity, and non-insane automatism, which necessitate acquittal.
Automatism can occur in a number of conditions for which consciousness is lessened, such as somnambulism, concussive automatism (Blair Reference Blair1977:169) or highly severe psychogenic dissociation, where an individual is unconscious either of their actions or that their actions are unlawful (McLeod, Byrne, and Aitken Reference McLeod, Byrne and Aitken2004:475). Again, the legal classification between non-insane and insane automatism usually involves two main principles of accurately labelling the defender’s condition and ensuring the safety of society from the offender. It is not desirable to categorize certain conditions such as epilepsy, diabetes or sleepwalking as insanity, although this has certain negative implications for the safety of communities. The main ways of separating non-insane automatism from insane automatism can be classified into three large categories. The first one is to solemnly declare that all types of automatism are insanity, which will allow the state to apply supervision or custody where needed for the protection of the public. However, this procedure is frequently unjustified and inconsistent, as automatism is a one-time occurrence, and thus it is unreasonable to spuriously alarm the defendant about analogous incidents when their automatism resulted from a concussion, for instance. The second possibility is the classification of automatism as a specific defence with certain provisions for the continuous interaction of the state to guarantee public security. This would imply that any and all instances of automatism would lead to an acquittal on the basis of automatism, with further monitoring if applicable. Although this approach enjoys such features as simplicity of application and guaranteeing the protection of public safety without using improper labelling, this approach is not very popular (Ferguson Reference Ferguson, Chan, Wright and Yeo2016a:245). The third type of automatism is to differentiate between insane automatism and non-insane automatism based on the cause, whether it can be a condition inside a person which can manifest again, as opposed to being an external cause, and which will not be repeated. Insane automatism usually connects to situations including epilepsy, cerebral arteriosclerosis, diabetic attacks, as well as selected dissociative states. The other type of automatism, referred to as the non-insane automatism, arises from such conditions as concussion, extraordinary psychological trauma, stroke, or short-term mental disorder that resulted from an illness. This particular method is still deemed useful mainly because the risk of recurrence situates the necessity of further supervision (Lederman Reference Lederman1985:821).
Thus, it is argued that while revisiting Section 22 of the BNS, it is one suggestion that the term “unsoundness of mind” is replaced with “mental impairment”; the nature of the conditions that may constitute either insane automatism or non-insane automatism should be described in detail. The suggestion of combining the internal or external test with the likelihood of recurrence is much more useful. This shifted approach guarantees that people are not overburdened with labels, society is protected, and people acquitted due to non-insane automatism do not undergo unnecessary and improper custody.
Judicial Trends of Burden of Proof and the Changing Jurisprudence of Culpability in the Insanity Defence
The Bharatiya Sakshya Adhiniyam, 2023, under Section 108 (formerly under Section 105 of the Indian Evidence Act, 1872), deals with the burden of proof where the responsibility for proving an insanity defence lies with the accused.Footnote 12 This provision implies a unique standard in criminal jurisprudence by shifting the burden from the prosecution, which usually carries out this duty of proving the guilt of an accused person. Ordinarily, prosecution retains the burden of proof in line with the fundamental principle of presumption of innocence, which requires that they prove that the accused person is guilty beyond a reasonable doubt, so that if there is any doubt, it might benefit him.
To successfully establish a defence of insanity under Section 84 of the IPC, the accused must demonstrate that they were suffering from legal insanity at the time of the offence. This requires not only invoking the provision but also producing cogent and credible evidence to substantiate the claim. In the case of Madhya Pradesh v. Ahamadullah,Footnote 13 the court held that this burden encompasses showing both total madness in general and his particular state of mind at the time of commission of the act, thereby signifying his lack of comprehension about such an act as being one either against nature or wrong.
The Supreme Court has consistently held a stance in relation to the requirement for the offender to prove insanity in order to be qualified to take the defence under Section 84 of the IPC. In the case of Sheralli Wali Mohammed v. State of Maharashtra,Footnote 14 the court pointed out that an accused should establish insanity but with a lower standard of proof as compared to the prosecution’s burden of proving guilt, which is based on the balance of probabilities instead. Likewise, in Shrikant Anandrao Bhosale v. State of Maharashtra,Footnote 15 the accused, a policeman named Shrikant Anandrao Bhosale, killed his wife with a grinding stone. He had mental illness in his family and received treatment for “paranoid schizophrenia”. He claimed insanity in court. The Supreme Court found he could not grasp what he did due to his mental state. It was further posited by the court that an accused must show that circumstances specified under Section 84 of the IPC exist for him or her to raise a plea of insanity, and he was acquitted. Additionally, in Tukappa Tamanna Lingardi v. State of Maharashtra,Footnote 16 a case brought before the court was of an accused person who attacked and beheaded a person in an open market. Evidence revealed that the accused suffered from “bouts of mania” during which he used to feel that a tiger would come and eat him. On the day of the offence, he was roaming about with a sickle, waiting for the tiger to come. The appellate court went through the evidence and facts of the case and held that the appellant was entitled to that benefit under Section 84 of the IPC because of unsoundness of mind. Furthermore, in the case of Shanti Devi v. State,Footnote 17 the accused used a razor and caused a fatal wound to her child, and pleaded insanity when charged with murder. The evidence revealed that she was hospitalized and diagnosed with “manic depressive psychosis” of a severe nature and that she did not have the understanding required by the nature of the act. The court decided that she was entitled to the plea of insanity under the IPC.
The Hon’ble Bombay High Court, in Saraswati Mahadeo Jadyal v. State of Maharashtra,Footnote 18 considered a similar case where the accused strangulated her newborn and left the dead body in a village. On interrogation, she pleaded guilty because her husband was neglecting her and was spending extravagantly. Further investigation showed that even earlier, she had killed her own child and been sent to a mental asylum for treatment as she was found to be of unsound mind. Keeping in view the otherwise clear and cogent evidence against her, the Court nonetheless allowed her the benefit of Section 84 upon due consideration of her case from both the legal and medical point of view.
In addition, further judicial pronouncements have explained what is meant by the burden of proof on the insanity defence. For instance, Sudhakaran v. State of Kerala Footnote 19 provides some guidance in this regard. The judiciary stated that it is incumbent upon the prosecution to prove guilt beyond a reasonable doubt while establishing mens rea concerning an accused person who, on his part, only needs to establish his or her lack of mental capability over preponderance of evidence. The accused must prove that it is more probable than not that they were insane at the time when the crime occurred.
The Madras High Court has echoed this when it affirmed in R. Maruthu v. State Footnote 20 that the burden of proof on the accused is less serious than that imposed on the prosecution. The court also reiterated in Chellathurai v. State Footnote 21 that the burden of proving insanity lies with a defendant and is not as demanding as establishing guilt for a prosecutor. This agrees with an earlier ruling in the case of Hari Singh Gond v. State of Madhya Pradesh,Footnote 22 in which it was held that where there is evidence suggesting prior mental illness, authorities must subject an accused person to medical examination by a competent psychiatrist or other expert witness in matters pertaining to mental health. Failure to do so could seriously damage the case against the accused person, resulting in a presumption being drawn against him or her. In order for an accused to wish the benefit of Section 84 of the IPC, it is essential to show that his capacity in relation to the act has been so affected by it that his mental processes and reasoning power were grossly impaired.
To sum up, a person must either not understand the nature of the act or not know that it is wrong due to their mental state. Insanity means that their mental faculties are so impaired that they do not understand the nature of reality or grasp the gravity or moral wrongness of their actions. The Supreme Court has repeatedly stressed that the crucial point in such cases is the mental condition of the accused at the exact time of the commission of the offence. A pertinent example of this can be found in Sheralli Wali Mohammed,Footnote 23 where a man accused of killing his wife and daughter pleaded insanity. In this matter as well, the Court rejected his plea, finding that the absence of motive or attempt at escape did not necessarily impugn the mental capacity required for mens rea essential for a conviction for murder. The burden lies on the accused – who is presumed to be sane – to substantiate a defence of insanity by presenting evidence of their mental condition at the time of the offence, as well as before and after its commission. Such evidence must collectively support the conclusion that the accused was non compos mentis at the material time.
A noteworthy distinction of insanity defences lies in the contrast between medical insanity and legal insanity. Legal insanity focuses more on the cognitive state of the accused pertaining to the offence for which they are being tried (Lilienthal and Ahmad Reference Lilienthal and Ahmad2017:155). For an accused to raise an insanity defence under Section 84 of the IPC, according to the Supreme Court’s judgment in Surendra Mishra v. State of Jharkhand,Footnote 24 it is not enough that he was medically insane at the time of the commission of the crime. The accused must establish legal insanity and show that he was so insane that he was absolutely incapable of knowing the nature or unlawfulness of his act at that time. This distinction between medical and legal insanity has been further elucidated in the case of Hari Singh Gond,Footnote 25 where it was held that while a court can consider a medical diagnosis, not all persons suffering from mental illness are relieved from entire criminal liability as legal insanity has to be established by presenting evidence that by reason of unsoundness of mind, the accused did not know either the nature or consequence of his act that it was wrong.
In the recent case of Kumari Chandra Sati Lajnani v. State of Rajasthan,Footnote 26 the accused was held guilty under Sections 302, 307 and 364 of the IPC and was awarded life imprisonment with a fine. The charges levelled were for pushing three children into a well, which resulted in the death of Omprakash, while Deoki and Udhavdas suffered minor injuries. The prosecution’s case was pegged on the evidence of the surviving children and the eyewitnesses to the event that the accused deliberately committed the act due to some personal disputes with the families concerned. The defence stated that Chandra was suffering from premenstrual stress syndrome (PMS), which is a factor that triggered uncontrollable and violent behaviour (Yeşildere Sağlam and Basar Reference Yeşildere Sağlam and Basar2019).
At the core of the defence claims were that the accused had exhibited abnormal behaviour and acquired aggressiveness in the premenstrual phase, to which medical experts had to testify in court about the physical and psychological effects of PMS. What was involved at that time was testifying in relation to her state of mind by a number of witnesses, ranging from family members to medical personnel. On the other hand, the prosecution argued that the accused’s actions were purposeful, thus motivated against the families, and this made PMS not a viable defence for committing such a heinous crime. Thus, the court had to determine the state of mind of the accused at the time of the incident so that she could be allowed to take the defence of insanity under Section 84 of the IPC. Though the defence gave medical evidence and witnesses to support the claim of unsoundness of mind due to PMS, the prosecution insisted that the incident was the result of premeditation and motivated by personal grievance. The defence argued that the alleged offence occurred when the accused was suffering from mental impairment, set off by severe symptoms from PMS. Many medical experts testified that her illness could have impaired her mental faculties under Section 84, which relieves liability if she was unable to realize the nature or wrongfulness of the acts because of unsoundness of mind. Some of the major medical opinions were that PMS had the potential to cause serious psychological and physical manifestations, thus affecting a fairly large proportion of women to different degrees.
The defence was presented by experts like Dr G. B. Advani, who outlined the PMS as leading to psychotic conditions like states of aggression and violence.Footnote 27 International research and legal precedents of the United Kingdom (UK) and the United States of America (USA) were referred to in arguing for the acceptance of PMS as a valid defence in reducing the liability of the crime. For example, PMS has been developed as a complex issue in discussions relating to criminal responsibility in both the US and UK jurisdictions.
In the USA, the famed attorney F. Lee Bailey penned lengthy arguments about PMS, claiming that the condition can disturb mental and emotional conditions sufficiently to raise concerns about criminal responsibility. He argued,
It is a fruitful area for the diligent attorney to pursue … Those who suffer symptoms severe enough to impair their emotional or mental functions are a small proportion of the women who suffer from PMS. Do not try to raise the defence unless you can back it up with solid medical evidence (Easteal Reference Easteal1991).
Further, he made some observations regarding how severe PMS symptoms could be applied to diminish the responsibility for the actions of an individual. Christopher Boorse of the University of Delaware further contributed to this debate by examining instances where PMS had been used in mitigation of criminal responsibility. His work focused on such individuals as Sandie Craddock and Christine English, who used PMS-induced diminished responsibility in court and emerged victorious, proving the impact of his interpretation in the USA (Boorse Reference Boorse, Ginsburg and Carter1987:84). On the other side of the Atlantic, in the UK, landmark cases such as R. v. Craddock Footnote 28 in 1981 and Regina v. English Footnote 29 in 1981 show important moments in which women successfully argued that severe PMS symptoms influenced their criminal acts (Boorse Reference Boorse, Ginsburg and Carter1987:85). These were greatly helped out by expert witness accounts from Dr Katharina Dalton, one of the prominent campaigners for PMS sufferers. Her medical testimony honestly revealed the disabling psychological and physical symptoms associated with PMS and thereby went a long way in aiding legal strategies which convicted these defendants for manslaughter instead of murder. Taken together, these references illustrate how PMS has been incorporated into legal discourse, and how conceptions of mental incapacitation and criminal liability have evolved in cases involving hormonally influenced behaviour. Dalton’s advocacy matches the legal analyses of Bailey and Boorse, both testifying to a growing understanding of the ways that physiological conditions like PMS connect the understandings of accountability within US and UK law (Oliver Reference Oliver2004). While Regina v. English might seem irrelevant to this topic, close scrutiny will reveal that the defence proved their case to a “preponderance of probabilities” that the accused was indeed suffering from PMS-induced unsoundness of mind at the time of the offence. The court accepted this defence, stressing that though the prosecution has to prove a case beyond a reasonable doubt, the defence only needs to prove based on a balance of probabilities. Hence, this case shows the developing understanding and legal recognition of PMS in the field of criminal liability and just how important a role medical evidence can play in such defences. This indeed paved the way for the future, where neurological factors are considered to mitigate culpability.
Evaluating the Scope to Recognize Diminished Responsibility in India: A Comparative Study
Diminished responsibility is an important concept in the substantive law of the UK. It is very clearly established in Section 2 of the Homicide Act, 1957.Footnote 30 This provision, when first introduced, allowed defendants who had killed another to get acquitted for murder by demonstrating that their mental responsibility had been substantially impaired at the time of the offence due to an abnormality of mind. This was a legal construct that sought to acknowledge and provide for the defendant’s reduced mental capacity and further distinguish between different degrees of criminal responsibility. This defence further evolved under the Coroners and Justice Act, 2009, and it more clearly defined its parameters. The revised statute required that, under Section 52, the mental abnormality must result from a recognized medical condition. It must substantially impair the defendant’s mental capacity with respect to understanding the nature of his or her acts, making rational choices, and being able to restrain themselves. That such impairment must substantially explain the person’s acts at the time of the incident, so as to establish a much more orderly manner of utilizing this plea of diminished responsibility.Footnote 31
This doctrine is to be found in the American Model Penal Code and allows conviction for manslaughter rather than murder if the homicide is committed under the influence of extreme mental or emotional disturbance with adequate provocation. This rationale is weighed, just like that of the UK model, from the point of view of the man standing in the position of the accused and recognizes that profound mental or emotional disturbances can have a marked effect upon a person’s conduct, thereby diminishing their criminal responsibility. The provisions of both UK and US law only cover homicide cases, which would facilitate a reduction from murder to manslaughter. They also emphasize that the substantial or extreme mental or emotional disturbance must make a substantial contribution to the criminal actions of the accused. These two provisions thereby emphasize that a person whose mental capacity is grossly impaired should not be held as accountable as one who is endowed with full mental capacities (Koessler Reference Koessler1960).
Conversely, Canada does not formally endorse a general defence of diminished responsibility but adopts specific defences that consider similar elements. For example, the defence of advanced intoxication may reduce a murder charge to manslaughter if the accused was so intoxicated as to prevent the intent to kill (Bystrzycki Reference Bystrzycki2023:259). Absolute defences, such as automatism due to non-mental disorder, will entirely relieve the defendant of criminal liability by showing their state of reduced consciousness absolved them from any criminal conduct, as exemplified in R. v. Parks.Footnote 32
The basic justification for such defence rests, however, on the reduction of punishment, which is incurred by the diminished moral responsibility of the defendant. Partial defences like intoxication do not clear the defendant of his responsibility completely, but they accept that punishment should be tempered because of mitigating factors. That is to say, the defences rest on the principle that while a particular type of sanction is called for, the severity of the penalty must be commensurate with the degree of culpability and factors contributing to the behaviour of the defendant. Justifications and excuses are carefully distinguished in criminal law, but it is emphasized that a theoretical understanding of wrongdoing and culpability is not required to understand concepts. An intuitive sense of mitigating circumstances may suffice for practical purposes. Cases of mitigating circumstances, those that lessen or eliminate wrongdoing or responsibility, are intuitively recognized. Other factors like force, threat or ignorance may be intuitively felt to reduce the moral responsibility of an actor. Cooperation with the authorities, for example, testifying against a co-defendant, can lead to a lighter sentence. However, these cases do not constitute partial defences since they are treated not as matters affecting the defendant’s punishment-worthiness but rather as external to the morality of the offence as blameworthy. Under the entrapment defence, it is assumed that state involvement in the act of making the offence possible reduces the legitimacy of punishing, as opposed to suggesting that the act was not wrongful or that the defendant was not responsible. Thus, the result is a stay of legal process as opposed to an acquittal, since the person still deserves punishment (Ashworth 1999).
Partial defences vary with the particular penal code as well as with the specific offence at issue. Whether partial defences exist, and whether they relate to a given issue, is a function of how offences are defined in the law. For instance, an unplanned robbery may be a mitigating factor under a general robbery statute, but it becomes a complete defence under a statute separating armed from unarmed robberies (Botterell Reference Botterell2023:347). For instance, what this means is that provocation alone reduces murder to manslaughter in very limited circumstances, but does not apply to another violent offence, like aggravated assault. It identifies that what has been adopted is a clear offence-specific approach to partial defences and shows that a mitigating factor will not be applied across the board to a wide range of charges (Botterell Reference Botterell2023:348).
Most mitigating circumstances reduce the severity of the punishment without affecting the determination of guilt at the time of sentencing. On the other hand, guilt-mitigating circumstances occur at the culpability stage and may either exculpate the accused from responsibility or reduce the offence. For instance, provocation reduces murder to manslaughter, and thus it is a guilt-mitigating factor since murder is a different offence from manslaughter, and the accused is convicted of a lesser offence (Botterell Reference Botterell2023:350). The Canadian Criminal Code already makes distinctions between grades of offences, for instance, first- and second-degree murder; such a structure could without difficulty be extended to cover partial defences. A diminished responsibility defence would call for the establishment of new grades or categories of offences that would correspond to distinctions in blameworthiness and -deservedness (Botterell Reference Botterell2023:352).
The phenomenon of provocation and infanticide serves as a very good example of how specific mitigatory facts may reduce the offence’s gravity by producing a normative linkage between crimes. Murder, manslaughter and infanticide are forms of culpable killings categorized according to their degree of seriousness and the punishment involved. For legislative frameworks to effectively introduce a defence of diminished responsibility, there would need to be a greater degree of differentiation amongst some offences for partial defences to meaningfully operate within it (Botterell Reference Botterell2023:365). Fundamentally, it is an argument for a complex understanding of partial defences, tending to emphasize mitigating circumstances that are capable of reducing culpability and sanctions without requiring a total overhaul of the principles of wrongdoing and culpability. It would require structural changes in the criminal code to make sure that it can capture such different degrees of culpability. It questions the rationale behind having diminished responsibility as a defence in the phase of liability in a criminal case rather than being assessed during sentencing. This distinction makes a difference at many levels because it affects who the accused is identified to be, and thus also the associated social stigma upon conviction.
The principle of fair identification emphasizes that a conviction should mirror precisely an offender’s moral culpability. The social stigma associated with a conviction for murder is very strong, as is the message it conveys to society. Any later reduction in sentence cannot withdraw such a label of “murderer”; hence, identification at the stage of initial conviction is of considerable importance. By allowing a plea of diminished responsibility at the liability stage, the legal system can go even further in ensuring that citizens will not be unjustly labelled and that criminalization remains legitimate (Lee and Sarch Reference Lee and Sarch2023:65).
Neutral blameworthiness offences are criticized for failing to distinguish between different degrees of culpability. An example of an offence that does not differentiate between deliberate, reckless and negligent acts is of constitutional concern. It allows persons with different degrees of moral culpability to be convicted under the same offence, violating the proportionality principle of justice. Under proportionality, punishment and stigma should be proportional to the degree of fault exhibited. Another important issue involves graduated accountability and dichotomous defences in criminal jurisprudence. The truth of the matter is that, in many instances, criminal liability depends on elements whose degree of existence can be measured in degrees, for instance, the level of intent or rashness involved. However, the ultimate decision on criminal liability is usually made on a dichotomous basis, either guilty or not guilty. This all-or-nothing approach may be unfair when the defendant fulfils some but not all elements of a defence. For instance, there is an individual who fulfils most elements of self-defence, except that he used reasonably excessive force. It can be said that a complete defence of murder will fail. Thus, he will be convicted of murder, in which there will be no room for sentencing mitigation (Botterell Reference Botterell2023:354).
Fundamental justice is strongly linked to the concept of voluntariness. The principle asserts that criminal liability accrues only from acts performed voluntarily, free of any form of compulsion. Where one’s capacity to act voluntarily is impaired, as in diminished responsibility, the question would then be how guilty or in control the person is over their actions. It would therefore be arbitrary to convict a person of a serious crime if it could be shown that their voluntary control was impaired (Botterell Reference Botterell2023:360).
Turning to partial excuses at the liability stage, it is argued that partial excuses, like diminished responsibility, should be considered at the beginning of the criminal process. It is through this type of structure that the legal system is better placed and able to distinguish between varying degrees of moral and voluntary culpability. Graded differentiation in offences and blameworthiness provides a closer matching between offence seriousness and the offender’s actual degree of blameworthiness, thereby upholding principles governing proportionality of response and correct attribution of responsibility (Wasik Reference Wasik1982:520). It therefore follows the argument that the defence of diminished responsibility has to be recognized at the liability stage and not at sentencing, if fairness and equity in the legal system are to be maintained. The criminal label given in conviction, and the stigma that goes along with it, actually reflecting the moral blameworthiness and degree of voluntary agency of the offender is what this approach would ensure, hence upholding justice (Wasik Reference Wasik1982:520).
The principle of the partial defence of diminished responsibility has to do with distinguishing between facts that are exculpatory, so as to constitute a partial defence, and those that are not. Douglas Husak proposes a “Unifying Hypothesis”, which states that a mitigating fact should suffice for a partial defence when it bears a resemblance or likeness to a full justification or excuse (Husak Reference Husak2010:311). It is a hypothesis containing two claims: a “Necessity Hypothesis”, which requires the presence of a complete parallel if a mitigating circumstance is to have the effect of a partial defence; and a “Sufficiency Hypothesis”, which posits that the mere existence of a complete parallel is sufficient to establish a partial defence. For example, youth – being of such extreme youth below the age of 12 years absolves one completely of criminal liability. Significantly impaired moral voluntariness would be another example that should be a mitigating factor for diminished responsibility, since total involuntariness, whether factual or normative, is a complete defence. It is claimed that criminal liability requires normatively voluntary conduct (Botterell Reference Botterell2023:359).
The Supreme Court of CanadaFootnote 33 has affirmed the principle that only voluntary acts attract criminal liability, such as through the acceptance of defence devices like non-mental disorder automatism, extreme intoxication, necessity and duress. All these defences are premised upon the assumption that it is unfair to punish persons partially responsible for their actions. Voluntariness is generally identified with choice, control and agency. For the choice or control theory, an act is voluntary if the agent can truly choose or control their behaviour. According to Agency Theory, voluntariness stems from practical rationality or the ability to react to reasons of how one ought to act. The two theories agree that in the absence of control or agency, it would be unfair to punish an agent. According to the Unifying Hypothesis, a severe impairment of voluntariness should serve as a partial defence (Botterell Reference Botterell2023:356).
What is difficult to decide is how much volitional impairment is required to establish a partial defence. One approach to the concept of voluntariness is that it involves being more or less responsive to reasons. In order to support diminished responsibility, there needs to be evidence showing substantial impairment of the voluntariness of the defendant. Evidence may include past similar behaviour, witness testimony, psychiatric evaluation, expert opinion, and that of the defendant himself. The fact-finder then has to determine whether the impairment was sufficient to warrant a partial defence (Botterell Reference Botterell2023:362).
Diminished responsibility as a partial justification should be predicated on substantial impairment of voluntariness that links back to the principle of normative involuntariness (Smith and Wilson Reference Smith and Wilson1993:72). The present state of homicide legislation, still based upon its rigid structure of sentencing and restricted partial defences, is bereft of any features that would convict and punish the offender justly. From considerations of proportionality, the punishment must be commensurate with the degree of culpability of the offender and the heinousness of the offence. It is manifestly necessary that such laws require overall reform. The laws do not distinguish appropriately between offenders of various degrees of blameworthiness and have more often than not resulted in disproportionate punishment (Smith and Wilson Reference Smith and Wilson1993:72).
Such a defence of diminished responsibility would provide a far more sophisticated approach to sentencing, but, beyond that, would do justice in recognizing that those convicted for murder are not on the same level regarding moral blameworthiness. The partial defences of infanticide and provocation already exist and reflect, at some level, a concern that culpability is graded. Thus, the inclusion of diminished responsibility would enhance the fairness of the courts and strengthen confidence among the public. Lastly, revising a homicide law to include diminished responsibility as a partial defence or as a sentencing factor is more likely to ensure it is in consonance with the principle of proportionality. This would mean that the revised legal system gives due recognition and response to the diversified degree of moral blameworthiness among offenders, further strengthening the public’s trust in the criminal justice system. In such considerations, the Indian Parliament is bound to reconsider the law of insanity defence so as to re-evaluate and change it to ensure that the punishment adequately suits the offence committed.
The Neurological Triggers of Criminal Tendencies
According to research, neurologically understanding what triggers criminal tendencies calls for a complex study of the interplay between biological, psychological and social factors. The endocrine system becomes very integral at the biological level in influencing behaviour and general health. This is the system that regulates most of the various human body functions, including mood and stressful conditions, which are very fundamental in defining human behaviour. Cortisol, also known as the “stress hormone”, is one of the central mediators in behaviour and cognitive procedures. This takes the form of a pattern on how cortisol changes in response to stressors and influences metabolic, immune and cognitive functions. High levels of cortisol, as in cases of chronic stress or anxiety, allow impairments of cognitive procedures like decision-making, memory and control of emotions, which may diminish impulse control, increasing the possibility of crimes (Dziurkowska and Wesolowski Reference Dziurkowska and Wesolowski2021:4).
The irregular levels of cortisol in general have a wide range of contributing factors. Cortisol production becomes misaligned by chronic stress due to socio-economic pressures, interpersonal conflicts or traumatic events. Genetic predispositions and individual differences in the functioning of the stress response systems further modulate cortisol levels. Lifestyle attributes like diet, sleeping habits and level of physical activity do affect cortisol secretion and consequently the responses to stress. Moreover, the social and cultural level complicates the endocrine–criminal tendency relationship. Prominent social stressors due to discrimination, poverty or exclusion might keep cortisol levels high. The context culturally influences how one perceives and reacts to stress and thus interferes with coping mechanisms and emotional regulation. Cultural attitudes towards aggression or resolutions of conflict may dampen or enhance stress-induced impulsivity and aggression (Anderson Reference Anderson1997:165).
Impulse control, as part of behavioural regulation, certainly remains closely linked with neurological mechanisms involving cortical and subcortical brain regions. The prefrontal cortex, which is directly responsible for higher cognitive functions such as decision-making and inhibitory control, has connections with the amygdala and striatum, subcortical structures implicated in the regulation of emotional responses and behavioural impulses (Rosenbloom, Schmahmann, and Price Reference Rosenbloom, Schmahmann and Price2012:270). Hence, genetic defects, traumatic events in early life, or neurodevelopmental disorders, including lesions or environmental insults to these neural circuits, can disturb the impulse control mechanisms, thus predisposing to impulsive behaviours that include criminal activities (Rosenbloom et al. Reference Rosenbloom, Schmahmann and Price2012:270).
The nature of neurological underpinnings for criminal behaviour is such that one has to delve into how biological, psychological and social factors interplay in the rise of behaviour. The endocrine system is an important link between stress responses and cognitive function within impulse control and decision-making processes (Henley, Kaye, and Lightman Reference Henley, Kaye, Lightman, Henley, Kaye and Lightman2011:291). In these complex interrelations, researchers and practitioners can work out more potent strategies for the prevention of crime and rehabilitation based on subtle knowledge of human behaviour and its neurobiological underpinnings.
Requisite Treatment to Be Given Under the Mental Health Care Act, 2017
The Mental Health Care Act, 2017Footnote 34 (MHCA) is one piece of crucial legislation that can help in dealing with the complexity of neurological triggers, diminished responsibility and even mitigated culpability. In fact, the act defines “prisoner with mental illness” under Section 2(w) and, in a way, is meant to protect their rights and ensure proper treatment and rehabilitation. By aligning its provisions with the underlying insights of neuroscience, the MHCA can derive practical solutions to more effectively deal with cases involving neurological impairments. One of the main features of the MHCA is the right to access mental health care under Section 18,Footnote 35 which encompasses the right to treatment for persons with conditions like neurological disorders, those which affect cognitive and behavioural functions. Such a provision could be brought into play to ensure that people under judicial proceedings are checked for any neurological damage. A court can order full neuropsychological assessments for an accused who is believed to have conditions such as epilepsy, traumatic brain injury or severe mental illnesses like schizophrenia. Neuropsychological assessments may provide some of the most vital information in relation to how such a condition would have affected the conduct of an individual, thus assisting in determining appropriate culpability. Furthermore, the MHCA prescribes the establishment of Mental Health Review Boards under chapter XI,Footnote 36 which can be interdisciplinary ones and thus evaluate the mental/neurological health of the accused persons. Such boards can include experts on neurology, psychology and psychiatry, which can help pick up subtle insights into cognitive losses of the accused persons and the implications the losses have on their behaviour. By acting in such a manner, the boards could provide some informed recommendations to the courts about the accused person’s extent of responsibility and appropriate mitigated culpability for the concerned actions of criminal liability.
The Act also prefers the goal of rehabilitation and community-based treatment under Section 19Footnote 37 over the punitive effect of the crime. Where the criminality of a person is significantly affected because of the underlying neurological impairments, the MHCA can assist the courts in giving alternative sentencing options. Instead of incarceration programmes, options are mandatory therapeutic engagement in care programmes designed for brain injury and neurological and psychiatric care programmes. For instance, a traumatic brain injury or chronic traumatic encephalopathy patient who is impulsive and aggressive could be suitable for a programme comprising such mandatory, structured rehabilitation as impulse control, anger management, and cognitive rehabilitative therapies. Additionally, the statute allows for advance directives under chapter III,Footnote 38 where a person can express their desires for treatment should they be found incapacitated. This can be allowed to extend to the legal context, such that an individual undergoing treatment for a diagnosed neurological condition is able to set their treatment plan had they been found in a legal predicament. This proactive attitude respects the rights and needs of the individual. Moreover, the condition affecting the person neurologically is considered in court. The MHCA can pragmatically help incorporate issues of mental health care into the criminal justice system. Programmes that incorporate information on neurological impairments and their associated behavioural effects to train legal personnel, which includes judges, lawyers and law enforcers, can be formulated to make them more knowledgeable, informed and sensitized to the seriousness of this issue. This will assist such judicial and legal minds in noting indicative symptoms of any type of neurological condition which may make the individual in question vulnerable.
There have been recent cases of parents killing their children. One was by a mother killing her son in Bangalore (Shetye Reference Shetye2024), and another case was of two daughters killed by their parents in Hyderabad (Sudhir Reference Sudhir2021). This raises serious questions regarding the mental state of the accused parents. A mother who is accused of infanticide and attempted suicide might get convicted on the establishment of mens rea and actus reus, but the deeper question of neurological disorder, if there had been any, will go undetected. This will only reflect poorly on our criminal justice system. The MCHA decriminalizes suicide attempts under Section 115, which gives a “presumption of severe stress in case of attempt to commit suicide”,Footnote 39 emphasizing that such an attempt is carried out in times of most severe mental distress and not with criminal intent. This highlights the need to consider the mental state of mothers accused of infanticide during court proceedings rather than focusing on the establishment of intent and knowledge of the consequences of the act.
The same should be applied to other behaviours correlated with neurological conditions to find a way back to the justice system that is more lenient and rehabilitative. For instance, a person with epilepsy who is arrested for committing a crime while seizing should be hospitalized instead of being incarcerated. Recently, the Delhi High Court set aside the arrest warrant of a man with bipolar disorder, stating that the provision under Section 105Footnote 40 of the MHCA is mandatoryFootnote 41 in nature (Chishti Reference Chishti2023), which enables the court to examine the proof of mental illness of a person by referring him to the Board established under the statute. The inclusion of the mental health regime in the MHCA would be an opportunity for guiding policies in the support of offenders with neurological impairments living in the community. Follow-up care in the community over the long term can reduce recidivism and ensure that such offenders receive the necessary care to manage their condition effectively. In essence, the MHCA has a very vital role in the acknowledgement of neurological triggers and recognizing diminished responsibility to mitigate culpability in the legal system. It can do this by ensuring comprehensive evaluation, encouraging rehabilitation over punishment, and making mandatory inclusion of mental health services into the criminal justice system.
Conclusion
The neurological triggers of criminal tendencies comprise the intricate interplay of biological, psychological and social factors. On the biological level, the endocrine system, especially cortisol, may have a significant influence on one’s behaviour and cognitive functions. Chronic stress, lower socio-economic status (Cohen, Doyle, and Baum Reference Cohen, Doyle and Baum2006:416) and traumatic events may contribute to high levels of cortisol, which impairs decision-making, memory and emotional control, thus potentially making one more prone to criminal behaviour (Peckins et al. Reference Peckins, Roberts, Hein, Hyde, Mitchell, Brooks-Gunn, McLanahan, Monk and Lopez-Duran2020). In addition to these genetic defects, traumatic early-life experiences and neurodevelopmental disorders may impair impulse control, which is primarily regulated by the prefrontal cortex and its connections to subcortical structures, such as the amygdala, responsible for processing fear and emotional responses. Consequently, such impairments can contribute to increased impulsivity and, in certain cases, predispose individuals to criminal behaviour. According to Section 84 of the old IPC, now under Section 22 of the Bharatiya Nyaya Sanhita, 2023, acts done by a person of unsound mind are not considered as crime, who at the time of doing the act was incapable of knowing the nature of the act, or that what he was doing is either wrong or contrary to law.
Although this resembles the M’Naghten Rules, it has remained as it is since 1860, unlike other jurisdictions like the UK that have evolved to incorporate concepts such as diminished responsibility. Use of the term “unsoundness of mind” in place of “insanity” by the IPC often leads to judicial challenges on account of undefined components and misapplication of English case laws in the Indian context (Asokan Reference Asokan2007:223). The Indian Evidence Act, 1872, now Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 shifts the burden of proof of insanity upon the accused, which is in reversal of the principle of presumption of innocence, wherein the prosecution has to prove guilt beyond a reasonable doubt. Insanity has to be established on two levels to constitute a defence, that is, general insanity and the specific mental state during the commission of the crime. Precedents of the Apex Court and High Courts bring out the application of Section 84 of the IPC, requiring substantial evidence about the mental state of the accused while the crime was committed.Footnote 42
Distinguishing between medical insanity and legal insanity, the latter goes only to investigate the cognitive state of the accused at the time of committing the offence, requiring robust proof of incapacitation to understand the nature or wrongfulness of his acts. In cases like Surendra Mishra and Hari Singh Gond, it is settled that a legal and not just a medical proof is required to prove insanity.Footnote 43 The recent case of Kumari Chandra recognized complex issues like PMS as a defence, pointing to a growing trend where neurological and psychological factors are increasingly considered in the determination of criminal liability. This changing understanding is in tune with international precedents that take into consideration conditions like diminished responsibility due to PMS (Yeşildere Sağlam and Basar Reference Yeşildere Sağlam and Basar2019), though Indian courts require sturdy medical evidence to support claims of this nature. It establishes how medical evidence can make or mar a case.
The concept of diminished responsibility, developed under the Homicide Act of 1957 and later amended in the Coroners and Justice Act of 2009, mitigates the criminal liability of a murder if it can be successfully shown that at the time of the commission of the crime the accused person’s mental ability was significantly impaired by some neurological impairment. This special defence predicates that serious mental or emotional disorders will affect criminal liability and even mitigate culpability. The justification for such defences lies in the alignment of punishment with the degree of moral culpability, tending to fairness and proportionality in sentencing (Koessler Reference Koessler1960). Diminished responsibility’s induction into the Indian criminal justice system, on the lines of the UK model, will further the cause of justice by recognizing different degrees of culpability and hence assuring more individualized and humane legal responses. It is in this sphere of complexities of neurological impairments in the legal system that the MHCA can make a huge contribution by ensuring proper treatment and rehabilitation of offenders. The MHCA places a great emphasis on the right to access mental health care and lays emphasis on rehabilitation and community-based treatment rather than punitive measures, by providing alternative sentencing options for people with neurological impairments.
Recent neuroscientific findings also argue for the case of reformation in sentencing and rehabilitation policies to further understand the role played by the brain during acting, decision-making and impulse control. Among the important insights to be drawn here are the ones including the fact that the prefrontal cortex, crucial for such functioning, develops up to the mid-20s, and the fact that traditional punitive measures are wholly inappropriate for young offenders. Although Section 18(1)(c) of the Juvenile Justice Act, 2015, encourages community service for a “child in conflict with law”,Footnote 44 that is, young offenders up to 18 years. Offenders ranging from 19 to 25 years are tried as adults, even when their prefrontal cortex may or may not have been fully developed, according to scientific studies. In this regard, rehabilitation programmes and targeted interventions focusing on cognitive–behavioural therapy (CBT), education and vocational training have been recommended. Trauma, mental illness and substance abuse have such a huge effect on the activity of the brain and consequent behaviour, indicating the need for treatment rather than imprisonment. Based on these neurological factors, which trigger criminal behaviour, the subsequent legislative reform has to be based on a balanced approach, taking into consideration the biological, psychological and social factors. Traditional defences, like insanity, must be updated vis-à-vis the current scientific advances. Rehabilitation should be the focus of legal systems over punishment, which will create an enabling environment, especially for offenders with neurological impairments, by providing a chance for public safety and individual reintegration. Justice will thus not only be served but also be humane and responsive to the complexities of human behaviour.
It is crucial to align criminal law jurisprudence with contemporary neuroscientific findings about brain functioning and behaviour. The defence of insanity in India needs to be redefined, keeping those neuroscientific insights in mind. In view of further research in neurosciences, especially on disorders affecting cognition and impulse control, legal standards must be updated. Such standardized neuropsychological assessments should be utilized in courts so that decisions on these defences are based on current neuroscientific knowledge. This will serve to better resolve questions regarding the mental state of an accused at the time of the offence and determine the appropriate punishment fitting of his culpability.
In the case of young adults, sentencing policies have to be reformulated in a way that considers the developmental stage of the prefrontal cortex, which is essential to decision-making and impulse control. For young adults, especially between the ages of 19 and 25 years, traditional punitiveness would be less appropriate due to their ongoing brain development until their mid-20s, according to recent scientific studies. In the case of older offenders with neurological impairments, sentencing needs to focus on rehabilitation with programmes such as CBT, vocational training and educational opportunities. This shift in treatment would address the neurological and psychological roots of criminal behaviour head-on and make it easier for ex-offenders to re-enter society and even reduce the opportunity for recidivism.
The rehabilitation programmes should therefore incorporate comprehensive treatment that considers the neurological and psychological deficiencies of offenders. In this way, specially tailored programmes can be made to focus on mental health care and treatment within the confines of the community rather than pure punishment. The MHCA provides a framework for access to proper treatment. By focusing on the care of individual persons in these programmes, offenders can address the real cause of their behaviour and facilitate successful reintegration into society.
The doctrine of diminished responsibility should be adopted, as in the UK model, to bring further differentiation into the system while considering criminal liability in India. Diminished responsibility recognizes the fact that serious mental or emotional impairment could decrease an individual’s degree of culpability and result in proportionate sentencing. In order to effectively apply this, clear guidelines should be laid down for its application, supported by robust medical and neurological evidence. It would then mean that sentences could reflect different degrees of culpability, bringing punishment closer to the mental state of the offender at the time the offence was committed. Recent cases like Kumari Chandra can be considered a judicial foundation for developing our own jurisprudence of diminished responsibility.
Acknowledgements
The authors extend heartfelt gratitude to the esteemed editorial team of the International Annals of Criminology for their invaluable guidance. Any error remains the sole responsibility of the authors.
Competing interests
The authors have declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
S. M. Aamir Ali is presently an Assistant Professor at Symbiosis Law School Pune, Symbiosis International (Deemed University), Pune. He is currently pursuing his PhD in criminal law specialization from the West Bengal National University of Juridical Sciences, Kolkata. He has completed his LL.M from the National Law School of India University, Bengaluru, with a specialization in human rights law. Mr Ali has been teaching across specializations in criminal law and human rights at the undergraduate and postgraduate levels since 2019. He has published over 35 academic research papers in national and international peer-reviewed journals, including 21 Scopus-indexed journals such as International Annals of Criminology, Economic and Political Weekly, Novum Jus, Brazilian Journal of International Law and Manchester Journal of Transnational Islamic Law and Practice.
Anuttama Ghose is an Assistant Professor of Law at the School of Law, Dr. Vishwanath Karad MIT World Peace University, Pune, India. She has completed her BA LL.B (IPR Hons.) from the School of Law, KIIT University, Bhubaneshwar and her LL.M from Symbiosis Law School, Pune, India. She has completed her PhD from the School of Law and Justice, Adamas University, Kolkata. She has previously worked as Vice-Principal and Assistant Professor of Law at the Indian Institute of Legal Studies, Darjeeling, West Bengal. She has over 40 academic publications, including 22 Scopus-indexed publications in national and international journals to her credit, where she has engaged deeply with various areas of intellectual property laws, international law, including human rights, climate protection, refugee protection and digital governance.
