Is Ritu’s case eligible for the exemption under s.84?

Hi, my name is Soumya AK, and I’m a research associate with the mental health and criminal justice team at Project 39A, a criminal justice program at National Law University Delhi. In the previous video, we discussed the defense of insanity under section 84 of the IPC. We will now try to understand the workings of the defense and the challenges usually faced by lawyers in raising it in court. I would like to preface this discussion by stating that there is a lack of understanding within the legal community on mental health issues, and a large section continues to hold outdated and stereotypical notions of insanity. It is important to keep this in mind before proceeding with our discussion today.

The facts tell you that the case is about a mother who killed all her five children. Not only that, she planned to ensure that no one was around when she drugged and drowned them. Is this a case fit for raising an insanity claim? Yes. Now, an obvious line of reasoning could be that no mother could kill her own child, but that is not why this is a fit case. In cases where there is a serious offense involved, the lawyer must meet with the client and collect information surrounding the incident as soon as possible. Of course, this holds true for all cases, but more so in cases when the crime is heinous or serious.

Now, Section 84 has two requirements and they both need to be fulfilled and I’ll be dealing with them one by one. The first one is on unsoundness of mind at the time of commission of the offense. So what do we know? We know that Ritu claims that she killed her children to save them from eternal damnation and was commanded by the devil that resides within her. But this is not enough to prove unsoundness of mind. We must try to ascertain whether there is a history of mental illness and whether she was taking medication for the same. To do this, you will have to talk to her, her family members, her friends.

And if there is a mental illness, you will also interview the treating doctor. The facts show that she was not being treated for any mental illness. There is no information on, say, violent outbursts or violent tendencies. However, interviews with her friends and family show that she was a little too religious. She spent hours on end praying in her room and refused to allow anyone inside when she was praying. This will be relevant. Please note that all such information, including information on absence of certain factors, should be properly documented and collated, so it may be submitted to the court and also to your defense expert. Now, mere presence of mental illness is not enough.

It must exist at the time of commission of the crime, and this is where eyewitnesses and the police are great sources of information. The facts show that she made no attempt to run away and in fact stayed at the scene of the crime, wailing and beating her chest, drawing attention to herself and the crime.

Now, another issue that we must look at here is that if Ritus behaviour prior to the incident or post, the incident was abnormal, then was she examined by a psychiatrist? If not, that is a failure of the prosecution to fulfill their duty. Some would say not running away and asking for the capital punishment to kill the devil inside her is abnormal behaviour, and therefore the prosecution should have ideally had to examine post the incident. Now we’ve looked at the first requirement. Let us move on to the second requirement. The soundness of mind must result in the accused, not knowing the nature or consequences of their actions. Did Ritu really know the nature and consequences of their actions.

Sure, she knew the nature of her actions. She knew that the act would kill her children. She planned it. However, it is important to ask if she knew the consequences. Ritu thought she was saving her children and also that they would be reborn as humans. But did she understand that the devil is not speaking through her or can’t speak through her. Did she Understand that her children were not coerced? And did she understand that there would be no rebirth? Section 84 deals with this capacity to know. Ritu was convinced that her children were coerced and was acting under this alternate reality. In her universe, she was saving her children. She was not committing a crime.

And so would you say Ritu was in touch with reality and actually had the capacity to comprehend and know the consequences of her actions. That is the question that we need to answer in this case. Now, in presenting this case, I must highlight that it will be an uphill task. There will be questions about her motherhood. Maybe she was fed up of her children. Maybe she was overwhelmed. Maybe she had ulterior motives like she wanted to leave her husband. But please remember that this is the job of the prosecution, and they must present their version of events beyond reasonable doubt. So what must you do as the defense lawyer.

As the defense, your job is to present a version that makes it preponderate or probable that the accused was of unsound mind at the time and therefore did not know the nature or consequences of the actions. The defense is not required to establish this beyond reasonable doubt, but on a preponderance of probabilities, which is a lower standard of proof. Now, in taking the insanity defense lawyers usually tend to employ it as an alternate defense. By that, I mean, in addition to other defenses, however, doing thig weakens your case.

Please note that taking this defense amounts to an admission to committing the act, which is why it is important to be aware of the facts and raise the insanity claim as the central defense when there is no doubt about the commission of the crime. Now what happens if you have a successful defense? A successful defense under Section 84 would result in an acquittal, but not necessarily liberty. Why do I say that? Under Section 335 of the CrPC, the accused may either be released to the family. But when this is not an option, they may be detained in safe custody in a mental health establishment for uncertain periods of time. So quickly to recap, what must you keep in mind?

First and foremost, talk to your client. It is integral to strategizing whether or not you must raise an insanity claim. Second, collect information from all possible collateral sources. Third, try getting an independent opinion from an external expert. This will allow you to challenge the state expert if required, and also assist you in cross examination. Remember, the aim is not to negate that opinion in entirety, but to lower its credibility. Now, more often than not, these cases don’t have expert evidence but place reliance on eyewitness testimony. So it is important to read those statements carefully before your cross-examination.

I hope this lecture has provided you with a broad idea of the workings of the defense and how to navigate some of the challenges. Before I conclude, I want to comment on some overarching problems that exist, which will only be resolved when the criminal justice system and the various stakeholders come together to build and increase awareness on mental health and its role within the system. First, courts are skeptical of the defense, and this bias creeps in when they adjudicate on such cases, usually denying the claim.

This is aggravated due to the lack of documentation and collateral sources as usually the accused is from a poor socio economic background and does not have documentation or even the resources to go to a doctor to be treated. Therefore, it is very likely that in most of these cases, the only evidence that you have is witness testimony.

Second, submitting defence expert opinions is not a matter of practice in most Indian courts. Even if there is a defence expert, they cannot examine and assess the accused independently and have to rely on the report provided by the court appointed state expert. And finally, and most importantly, the current understanding of mental illness is outdated and based on problematic notions of what it means to be insane. Due to this, lawyers and courts often are unaware of the existence of a mental condition. Unless we make sustained efforts to bridge this gap in understanding accused persons with mental illness, they will continue to slip through the cracks and be caught in an ill equipped criminal justice system. Thank you for joining me today.