Implications of Change in Terminology

The term ‘mental illness’ has been introduced in the BNSS without providing any definition. However, the BNS clarifies that ‘mental illness’ shall have the same meaning as provided under s.2(a) MHCA.[4] The MHCA defines ‘mental illness’ as ‘a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence.’.[5] Thus, the definition of ‘mental illness’ unambiguously excludes ‘mental retardation’ from its scope.

There is a clear distinction between ‘mental illness’ and ‘mental retardation’, and the law has consciously sought to treat both differently. While mental illness can be treated,[6] mental retardation is an ‘organic disablement of the mind’ which one may be taught to cope with, but cannot be ‘cured’.[7] The term ‘mental retardation’ has now been widely replaced by ‘intellectual disability’,[8] which is defined under the RPwD.[9] Persons with intellectual disability (mental retardation) have high support needs which need to be accommodated under the law. Acknowledging the need for protection of persons with mental illness or ‘mental retardation’, the Law Commission also recognised the need for a different procedure under the CrPC for the latter category of persons.[10]Even though conceptually different, both mental illness and intellectual disability (mental retardation) have been classified as ‘specified disabilities’ under the RPwD Act,[11] and have been beneficiaries of protections under the fitness to stand trial framework.

The CrPC currently uses ‘unsound mind’, ‘lunatics’ and ‘mental retardation’ in the fitness to stand trial framework. The term ‘unsound’ has suffered from a lack of definitional clarity, leading to inconsistent application of protections under the law.[12] However, this term is broad enough to include varying degrees of mental illness[13] as well as mental retardation[14] within its scope. By using consistent terminology of ‘mental illness’, the BNSS proposes some clarity about who is eligible for protection under the law. However, troublingly, it also unambiguously excludes an important category of persons (persons with intellectual disability) thereby denying them their fair trial rights and protection under the BNSS.

II. Procedural Anomalies

Ss.329 and 330 CrPC, provides two distinct procedures to deal with persons with mental illness and persons with intellectual disability (mental retardation), who are incapable of making their defence. By excluding persons with intellectual disability, the BNSS fails to recognise the separate framework that was designed under the CrPC for this category of persons. Consequently, the BNSS suffers from procedural anomalies that adversely impact the treatment of both persons with intellectual disability and persons with mental illness.

S.329(3) CrPC provides a distinct procedure for treatment of persons with intellectual disability (mental retardation). Since intellectual disability is a permanent condition, these persons are eligible to be discharged without trial under s.330(3). By proposing to replace ‘mental retardation’ with ‘mental illness’, the BNSS revokes the protection to this category of persons and unfairly excludes them from any protection under the fitness to stand trial framework. Considering the nature of their mental condition, it is absurd that persons with intellectual disability may be compelled to stand trial, exposing them to prolonged detention and violation of liberty even though they do not have the requisite ‘capacity’.[15]

Persons with intellectual disability (mental retardation) are further excluded from other protections under BNSS. Unlike the CrPC, there is no provision in the BNSS allowing persons with ‘mental retardation’ to either be delivered to family or friends;[16] sent to safe custody;[17] undergo periodic review or assessment;[18] or be discharged[19] or acquitted due to mental incapacity at the time of commission of the offence.[20] This exclusion of persons with intellectual disability from safeguards under the BNSS puts them in a precarious position and adversely impacts their fair trial rights and personal liberty.

The BNSS is not only inconsistent with the rights of persons with intellectual disability (mental retardation) but also creates procedural anomalies in the treatment of persons with mental illness under the fitness to stand trial framework. Both Cl.368(4) and proviso to Cl.368(3) is applicable to persons with mental illness against whom a prima facie case is made out. The anomaly lies in the fact that both clauses provide different outcomes for the treatment of the same class of persons without any conditions on application. While one provides for postponement of trial, the other provides for discharge under Cl.369, and neither makes any distinctions between the circumstances under which either of the outcomes would apply. As discussed earlier, the CrPC provides separate procedures for persons with mental illness and intellectual disability. Further, s.329 CrPC has been interpreted to provide distinct procedures for persons with treatable and untreatable mental illness.[21] While persons with mental illness are eligible for postponement of their trial, persons with untreatable mental illness and intellectual disability could be discharged under s.330 CrPC. The BNSS does not recognise any of these distinct categories but allows for separate outcomes without any guidance, leading to potential anomalies.

III. No Real Solution

While the CrPC is largely incongruent with the values and principles under the RPwD Act and the MHCA, these infirmities are carried forward in the proposed BNSS. The MHCA and RPwD Act are rights-based legislations which prioritise the liberty and dignity of persons with mental disability. Through the provision of accommodation and support, informed consent and periodic mental health assessment and reporting, the legislations allow for the realisation of the rights of all persons with mental disabilities. These priorities are not reflected in the present criminal law framework. The proposed bill makes no changes to the current framework of the CrPC. Instead it introduces a widespread change in terminology, leading to further confusion and discrimination.

[1] Law Commission of India, ‘One Hundred and Fifty Fourth Report on the Code of Criminal Procedure, 1973’, Chapter XVI, Enquiry and trial of persons of unsound mind (Law Commission of India Report No. 154, 1996).

[2] Caveat: This is dependant on the treatability of the mental condition.

[3] Incapable of making their defence is understood as they are unable to understand the charges, nature of evidence, any aspect of court proceedings; provide information relevant to the circumstances of the act; or instruct counsel; Vijay Pradap Singh v. State 2016 SCC OnLine Mad 13831; State of Gujarat v. Manjuben 2019 SCC OnLine Guj 6937; Vivian Rodrick v. State of West Bengal (1969) 3 SCC 176; Gurjit Singh v. State of Punjab 1986 SCC OnLine P&H 195.

[4] Cl.2(19) BNS.

[5] S.2(r) MHCA.

[6] Lok Sabha, ‘Joint Committee on Mental Health Bill, 1978: Evidence’, CB(II) No. 318, 1978.

[7] Amita Dhanda, Rights of the Mentally Ill – A forgotten domain, India International Centre Quarterly, Volume 13, Issue 3/4, December 1986, Pages 147-160.

[8] L Salvador-Carulla L, GM Reed, LM Vaez-Azizi, SA Cooper, R Martinez-Leal, M Bertelli, et al., Intellectual developmental disorders: Towards a new name, definition and framework for ‘mental retardation/intellectual disability’, World Psychiatry, Volume 10, Issue 3, October 2011; Bhargavi Davar, Legal Frameworks for and against People with Psychosocial Disabilities, Economic and Political Weekly, Volume 47, Issue 52, December 2012, Pages 123 -131; Department-Related Parliamentary Standing Committee on Health and Family Welfare, Seventy-Fourth Report on Mental Healthcare Bill, 2013 (Parliamentary Standing Committee on Health and Family Welfare Report no. 74, 2013).

[9] It is defined as ‘a condition characterised by significant limitation both in intellectual functioning (reasoning, learning, problem solving) and in adaptive behaviour which covers a range of everyday, social and practical skills’, including special learning disability and autism spectrum disorder.

[10] Law Commission of India, ‘One Hundred and Fifty Fourth Report on the Code of Criminal Procedure, 1973’, Chapter XVI, Enquiry and trial of persons of unsound mind (Law Commission of India Report No. 154, 1996).

[11] Schedule, RPwD Act.

[12] Soumya AK, Maitreyi Misra & Anup Surendranath, Shape Shifting And Erroneous: The Many Inconsistencies in the Insanity Defence in India, NUJS L. Rev., Volume 14, Issue 195, 2021.

[13] Bapu v. State of Rajasthan (2007) 8 SCC 66; R. Deb, Reform of the Indian Lunacy Act, Journal of the Indian Law Institute, Volume 17, Issue 3, 1975, Pages 398-409; Ketki Ranade, Arjun Kapoor, Tanya N. Fernandes, Mental Health Law, Policy & Program in India – A Fragmented Narrative of Change, Contradictions and Possibilities, SSM – Mental Health, Volume 2, December 2022.

[14] Amita Dhanda, Rights of the Mentally Ill – A forgotten domain, India International Centre Quarterly, Volume 13, Issue 3/4, December 1986, Pages 147-160.; Bapu v. State of Rajasthan(2007) 8 SCC 66; K.M. Sharma, Defence of insanity in Indian criminal law, Journal of Indian Law Institute, Volume 7, Issue 4, 1965, Pages 325-383; Kaliyappan v. State 2020 SCC OnLine Mad 2030.

[15] Law Commission of India, ‘One Hundred and Fifty Fourth Report on the Code of Criminal Procedure, 1973’, Chapter XVI, Enquiry and trial of persons of unsound mind (Law Commission of India Report No. 154, 1996); Cl.357 BNSS.

[16] Cl.378 BNSS.

[17] Cls.370 and 374 BNSS.

[18] Cl.376 BNSS.

[19] Cl.370 BNSS.

[20] Cls.372 and 374 BNSS.

[21] Law Commission of India, ‘One Hundred and Fifty Fourth Report on the Code of Criminal Procedure, 1973’, Chapter XVI, Enquiry and trial of persons of unsound mind (Law Commission of India Report No. 154, 1996); Kaliyappan v. State 2020 SCC OnLine Mad 2030.

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