Insanity Defense: A Loophole for criminals.


Author: Ms. Kashish Khurana & Aaradhy Shrivastava, School of Law Jagran Lakecity University, Bhopal.

Insanity Defense or Plea is defined as, “The insanity defense refers to a defense that a defendant can plead in a criminal trial. In an insanity defense, the defendant admits the action, but asserts a lack of culpability based on mental illness”. 

The insanity defense in the court is generally taken as an excuse rather being a justification of the facts and the crime.

The important question that arises with the insanity defense is about the competency at the standing trail. In the requirements of due process of law, an accused cannot stand competent for the trial if he/she is legally incompetent. As directed by the Supreme Court of Dusky a person is said to be incompetent if he/she is unable to communicate properly to her attorney about the proceedings of the case. This was directed because the proceeding involves some form of the psychological evaluation process to which an incompetent person cannot withstand. In absence of his psychological involvement and understanding in the status quo, it merely remains a moot rather than a standing trail.


Though the insanity defense has taken a legal position in the last three centuries it has been into existence for decades. There were various tests used to declare a person legally insane such as the Wild Beast test, The Insane Delusion test, and the test of capacity to distinguish between just and unjust. These three tests laid the foundation for the landmark Mc Naughten rule.[1] This Mc Naughten rule became a remarkable precedent for the law concerning the defense of insanity. Even in India, section 84 of IPC (Indian Penal Code) is solely based on the McNaughten rules.

Section 84 of IPC Act of person of unsound mind: “Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law”.

The insanity defense is a neutral concept. There are many beliefs regarding this in the legal world. Some scholars think it is helpful for those who are actually incapable of understanding the difference between just and unjust, on the other hand, there are scholars who believe the defense of insanity is giving an unfair chance to the culprits who act as insane but are actually not.


  1. Temporary Insanity: A condition where a person is insane only periodically or for a specific point of time. Some temporary mental illnesses or insanities include depression, anxiety disorders, schizophrenia, eating disorders and addictive behaviors. There are two possible outcomes in the defense of temporary insanity, one is ‘not guilty because insane’ and the other is ‘guilty but cannot be tried because insane.’
  • Permanent insanity:– A condition where a person is persisting a mental illness continuously. It can be proved from past records and events that had occurred proving that the person is permanently insane and is incapable of understanding the gravity of any situation. 


  1. It creates an instant atmosphere of guilt.

The case of the insanity defense has a slight difference as compared to others. In such cases, the accused need to confess that he has committed the crime but had no idea about what he has done. He is incapable to differentiate between what is right and what is wrong. Here, the mental state of the accused is may become a supporting or opposing factor for his defense of insanity.

  • It does not allow the death penalty.

An insane person cannot be given the death penalty, although he confesses his crime, he is incapable to understand the gravity of what he has done. Instead, any lenient punishment could be charged to the accused.

  • It can lead to a no-jail term or possible acquittal.

In some instances, where the mental condition of the accused has been proved to the court, he is neither charged with any penalties nor any acquittal. It all depends upon the mental status he is possessed with.


  1.  It is abolished in some jurisdictions.

It is important to note here that not all the courts accept the plea of insanity in their jurisdiction. It has been abolished at some places, so if any such case arises which is successful in convincing the jury is transferred to such a jurisdiction where this provision is followed.

  • It can lead to increased trial costs.

One of the most important points here is that it increases the trail costs. To prove the insanity the defense will definitely hire a specialist to prove their point to the court. Also, the prosecution will also do the same. In this process, a significant amount of money would be used. And among all these only the least number of cases go successful in taking the defense of indemnity.

  • It can be very difficult to prove. 

It is a very big challenge for the defendant to prove the plea of insanity. Mental illness can be proved by having it checked by an expert who as per his knowledge, test and experience gives proof of the actual mental status of the accused. Even after that, it is upon the judges to accept or reject the defense of insanity thus produced. It does not give any guarantee of relief or solution to the accused.

  • It can be misused

The defense of insanity can even be misused to escape from the acquittal or punishment. It is very difficult to examine whether the person was of sound mind or unsound mind at that point in time. In the end, it all depends on how the judge understands the matter and gives his judgment.

Related Judgments:-

Hari Singh Gond vs. State of Madhya Pradesh, 2008[2]: Hon’ble Supreme Court in the following case observed that Section 84 of IPC lays down the legal test of responsibility in cases of alleged unsoundness of mind. The courts have, however, mainly treated this expression as equivalent to insanity. But the term ‘insanity’ itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity.

Etwa Oraon vs. The State (Uttar Pradesh), 1960[3]: The High Court Of Patna, in this case, stated that a mere possibility that the accused may have been insane was insufficient to establish the kind of insanity inferred in section 84 of IPC.

Chellathurai vs The State (Madras), 2012[4]:- The High Court of Madras held that the crucial point of time for deciding whether the benefit of section 84 should be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration. It would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind that naturally impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility.


The insanity defense is a loophole for the criminals despite of many advantages. They are:-

  • It is the most popular weapon as a defense in this century to escape from any crime.
  • It is almost impossible to prove the mental status of any person at the time of the offence.
  • It is not just concerned with the mental insanity but with the legal insanity.
  • Mere arguments are not enough to decide that the accused deserves the defense, it depends upon the circumstances.
  • The case of insanity defense becomes more complicated as compared to others as it not to prove that the accused has performed the crime or not, rather it is about the accuse confessing his crime and stating that he has no idea about what he has done.

These reasons are making insanity defense a much easier and modern way for criminals to exempt from the crimes they perform intentionally.





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