One of the cardinal legal principles applicable to every law court in India is called ?mens rea? which, in Latin, means the capacity to form the intent to carry out an action. If the defendant suffers from a mental illness, it can affect his capacity to form the intent, and the judgment needs to take that into account.

There is no disagreement on this basic principle. But a judicial framework is needed to translate theory into practice, which could then be developed through judgments in individual cases. Indian law has such a framework. It is called the McNaughton Rules, and is a set of principles by which a person may be found not guilty by reason of insanity (NGRI).

These criteria were introduced to English law in 1843, following a murder trial involving Daniel McNaughton, who tried to murder the Tory prime minister, Sir Robert Peel, but ended up killing his secretary. He had been struggling for years under the delusion that the Tories had hatched a massive conspiracy against him. At his trial, his counsel was able to show, through the best medical evidence available at the time, that McNaughton?s delusions were real. The jury ultimately returned a verdict of NGRI. McNaughton was subsequently admitted to Bethlem Royal Hospital, where a special wing for criminal lunatics had recently been built.

Defence case

There was a public outcry after the verdict. A panel of senior judges was formed to clarify the legal position on insanity, which led to the formulation of the McNaughton Rules. According to this, for establishing a defence on the grounds of insanity, it has to be conclusively demonstrated by the defence that at the time of committing the act, the accused was labouring under ?such defect of reason...as not to know the nature and quality of the act... or, if he did know it, he did not know he was doing what was wrong?.

By 1860, the rules had been introduced in India. Thus, the Indian courts were among the first in the world to have a judicial framework for determining insanity. Ironically, most erstwhile British colonies have moved on from the McNaughton Rules, developing more sophisticated concepts to take insanity into account at trials.

The Indian courts, however, have seen no change. The rather rigid McNaughton Rules ensured their application was limited. Also, even if McNaughton is applied in a case, there is no provision to offer treatment to an individual deemed insane and hence not guilty. Thus, such a person is technically able to walk out of the court a free man, which raises concerns about public safety.

A question of rights

There are other reasons for the Indian courts? backwardness in this area. The limited contact, even mistrust, between lawyers and doctors has meant insufficient dialogue about the deficiencies of the law. The problem is even more acute in psychiatry, where there is chronic understaffing in government hospitals. In the West, psychiatrists can sub-specialize in forensic psychiatry ?currently unrealistic in India.

Another important reason is the lack of involvement of the voluntary sector. The NGOs that do exist function mostly at the state level and lack national clout. This problem has led not only to the lack of justice for psychiatric patients but also to poor implementation of existing mental health laws for hospitalized psychiatric patients.

A beginning can be made by starting a dialogue between key stake-holders in this field ? judges, lawyers, psychiatrists, voluntary activists, politicians as well as patients and their families. This should help highlight problems as well as bring up solutions which could work in India. Something needs to be done about the basic human rights of this particularly disadvantaged group in the country. But is anyone listening?