FITNESS TO STAND TRIAL.

FITNESS TO STAND TRIAL.

 

I.           Implications of Change in Terminology

The term ‘mental illness’ has been introduced in the BNSS without providing any defi nition. However, the BNS clarifi es that ‘mental illness’ shall have the same meaning as provided under s.2(a) MHCA.194 The MHCA defi nes ‘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.’.195 Thus, the defi nition 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,196 mental retardation is an ‘organic disablement of the mind’ which one may be taught to cope with, but cannot be ‘cured’.197 The term ‘mental retardation’ has now been widely replaced by ‘intellectual disability’,198 which is defi ned under the RPwD.199 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 199 It is defi ned as ‘a condition characterised by signifi cant 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. 198 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, defi nition 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). 197 Amita Dhanda, Rights of the Mentally Ill – A forgotten domain, India International Centre Quarterly, Volume 13, Issue 3/4, December 1986, Pages 147-160. 196 Lok Sabha, ‘Joint Committee on Mental Health Bill, 1978: Evidence’, CB(II) No. 318, 1978. 195 S.2(r) MHCA. 194 Cl.2(19) BNS.  CrPC for the latter category of persons.200 Even though conceptually different, both mental illness and intellectual disability (mental retardation) have been classifi ed as ‘specifi ed disabilities’ under the RPwD Act,201 and have been benefi ciaries of protections under the fi tness to stand trial framework. The CrPC currently uses ‘unsound mind’, ‘lunatics’ and ‘mental retardation’ in the fi tness to stand trial framework. The term ‘unsound’ has suffered from a lack of defi nitional clarity, leading to inconsistent application of protections under the law.202 However, this term is broad enough to include varying degrees of mental illness203 as well as mental retardation204 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 204 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. 203 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. 202 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. 201 Schedule, RPwD Act. 200 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).  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 fi tness 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’.205 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;206 sent to safe custody;207 undergo periodic review or assessment;208 or be discharged209 or acquitted due to mental incapacity at the time of commission of the offence.210 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 fi tness 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 210 Cls.372 and 374 BNSS. 209 Cl.370 BNSS. 208 Cl.376 BNSS. 207 Cls.370 and 374 BNSS. 206 Cl.378 BNSS. 205 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.  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.211 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.