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This article is written by Tejasvi Gupta.


Section 84 of the Indian Penal Code, 1860 gives out general exception. This section enshrines defense of insanity or unsoundness of mind, when a person is incapable of knowing the nature and effect of the act he is doing. The pith of this section is the person committing the crime lacks mens rea and because of this criminal liability is absolved. Degree of responsibility of a sane person is considered to be different than that of a person suffering from insanity. Furiosus nulla voluntus est, this tells us that when a person has a mental disorder, he has no clue what is he doing which means that person has not committed the crime. Recently, Supreme Court of India held that “Depression is not under unsoundness of mind for Sec. 84”

This article will be focusing upon one particular argument of including depression under incapacity, as the effects of depression on a person have similar effects in terms of knowing the nature of the act or that he is doing is wrong or contrary to law. The author will be arguing that legal test of responsibility of depression should be in terms of whether the person who is diagnosed with depression can understand the act or not. 

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The result obtained will be people who are suffering from depression, who are not able to determine the nature of the act committed should not be absolved from the criminal responsibility.

The Supreme Court recently laid down that depression cannot be included under insanity as defense for the crime committed. The facts of the case in hand were that army personnel threw stones at his senior and claimed defense under insanity while arguing that he is suffering from depression. The defense pleaded that depression should be included under insanity as, the accused lacked guilty mind. In the same case, Justice Nariman observed that to claim a defense under section 84 of IPC only when the person has no clue at all about his acts. Via this, he wanted to showcase what kind of threshold is required to claim section 84 as a defense.  

Since 1843 the same rule for determining insanity is being used i.e., McNaughten Rule. This clearly shows that this particular rule is obsolete in contemporary times as in 1840’s depression was not given due importance and jurists never took that into consideration. The sole idea of this rule was to prove there was no guilty mind present while commission of the crime. Legal insanity is the one which is taken into consideration and not medical insanity when it is to be determined whether there was insanity present or not.  

The hypothesis proposed in this article is, whether depression should be included under incapacity as general exception? This question is going to answered in two parts, the first part will include study of the case and analyzing the reasoning of the judges who pronounced this decision. Also, taking 42nd Law Commission Report of India who criticized the McNaughten Rule but came to the conclusion that law of insanity under section 84 needs no change. This analysis will be done while comparing mental abnormality and depression. This proves that we cannot include depression as a form of insanity which will be politically incorrect to do so. Then there will be an attempt to recognize if depression is to be termed under mental illness, retardation or disorder.

The second part of the article will focus upon showcasing that the theory underlying incapacity and seek to give a procedure to establish depression and degree of depression in a person. That is, who will be responsible for exempting person who has committed the guilty act from the legal responsibility and how depression also incapacitates a person, not only in lucid intervals but during the time of commission of the crime. Depression should be included under this as well as medical science shows that people suffering from depression show similar signs of cognitive behavior. Lastly, I will be proposing how there should be degrees of depression made under incapacity to recognize what type of depression should be called a defense. 

Mental abnormality & Depression

In Indian law under Section 84 insanity included unsoundness of mind; depression cannot be categorized under the same. As a person who is suffering from depression cannot be termed as a lunatic as it will only be politically incorrect to do so, but also incoherent in legal sense. A person who is suffering from depression is considered to be sane in legal terms which means, that person is well aware of his surroundings and nature of his acts, but in reality there is a delusion which is ignored while lacing up the criminal liability of a person who has depression. 

To understand the defense of insanity and delink depression from it we need to understand the cognitive psychology construct of heuristics, via this we are able to seek to simplify information-processing tasks which are omnipotent for having the sense of doing a particular act. A person suffering from depression faces similar kind of situation, where he cannot process the nature of the act and cognitive functions differ from that of a normal sane individual. 

Supreme Court refused to included depression under insanity as there is a different threshold maintained for insanity i.e., the person claiming it should have no knowledge of the act he is doing. Justice Nariman forwarded an analogy, that smashing head should feel like smashing a coconut, this shows the person has no knowledge or sense of his acts. This is not the case in depression, but the cognitive and act done during depression are that of an absent-minded person who is not concerned and lacks a guilty mind.

For separating insanity from depression and including depression in incapacity we will have to look upon the psychological concept of crime. Lombroso attributed criminality to atavism which means that criminals have savagery ancestral history and criminality in them is hereditary. This shows that how patient of depression differs from a person who holds the capacity and mindset to commit a crime. 

Depression as a Mental Illness or Disorder

In Mental Health Act, 1987 there is no mention of any kind of mental disorder, which are recognized medical science and serious efforts are being made in that field. There are cases of mental retardation, illness and disorder. In all the aforementioned cases the intellectual functioning is diminished and differs from a sane person. Deficit adaptive behavior and feeblemindedness has been observed, even after that only mental retardation and illness are included under general exception and not mental disorders such as depression.

The reason which can be traced down is that clinical depression only shows altered activity of only certain neural circuits in the brain which proves impairment but not delinquency. It is suggested by Gillin that physical abnormalities and cognitive impairment drive them to commit crime, there is a connection between abnormal personalities in whom the endocrine glands are functioning abnormally and this mal-functioning causes them to commit certain types of crimes. This is also known as Guillian-Barre syndrome. Brain mapping and medical evidences shows similar signs in a person who is diagnosed with depression and yet no defense is provided for the same. 

The reason why section 84 uses legal insanity and not medical insanity is because, to claim insanity as a defense is that the person while doing the act needs to be insane, before and after that guilty act is irrelevant. 

If we analyze the two test which laid the foundation of McNaughten rule i.e., insane delusion test and test of capacity which judges the ability of distinguish between right or wrong. These tests can also be relevant when a person under depression has committed a crime as that individual also loses his capacity to judge what is right and wrong. If we see how analytical and natural law of philosophy, the natural school of thought will show how morality and law interplay will lead to inclusion of depression under incapacity, as morality talks about not punishing a person until unless he had guilty mind to do that crime. On other hand if look into the analytical school we will be seeing that how crime is considered against the society and needs to be deterred and morality will not be given consideration. This shows that how, crime committed while suffering from depression when seen under the lens of morality it will not be considered as a crime. 

Degrees of Depression & Inclusion under Incapacity 

For including depression under general exception to criminal offences there is a need to formulate degrees of depression based upon the cognitive functioning and ability to judge what is right or wrong. Broadly, there are 9 types of depression which are to be seen and not every type can be included under incapacity. It is to be determined under which a person lacks mens rea. The depression which we are concerned is major depression i.e., chronic depression under this type of major depressive disorder a person has memory loss, inability to take decisions and constant thoughts of suicide. All of this shows that how a person suffering from this category of depression will lack responsibility as that individual will not be independent to the act which he will be doing.  Desert-disease jurisprudence is a good positive account of the relationship between our criminal justice and mental health systems, the law has adopted many doctrines to fill the “gap” between desert and disease that dangerous but responsible agents create

Rest of the categories under depression will fail to be included under depression as the severity and cognitive functioning is enact, and guilty mind will be present. It will be difficult to prove beyond a reasonable doubt by the prosecution that the act was done with a guilty mind, which can be seen as a critic if depression is included under incapacity. But there are certain pre-trial issues which are to be taken into consideration, to determine if depression can be used as a defense. First, investigation which will be conducted, but to conduct a fair investigation within the purview of the constitutional rights is an arduous task. In the United States of America, a waiver to constitutional rights is given while investigating cases to see if there was a guilt mind or not when mental disorder defense is claimed. The second step should consist of forensic evaluation and right to be consulted to a mental health expert.

There is a need to conduct pretrial forensic evaluation to get a clear picture that if a person is suffering from depression or not and specifically of what kind. This is a necessity to evaluate whether the person is suffering from depression or not and the focus will be upon if he was suffering at the commission of the crime or not. The last stage consists of analyzing the competency to stand on trial.  It essentially means the defendants ability to understand the charges against him as if a person is incompetent to do so, it will be seen as an unfair trial and should ideally be declared a mistrial.  

From the aforesaid steps to analyze a person who claims to be suffering from depression a conclusion can be reached upon if the person accused had mens rea or not. 

Error in Supreme Court’s Interpretation 

There used to be a social construct in our society that depression does not exists, now that myth has been shattered with concreate medical evidences. The same way mental disorder was discarded to be included under insanity was a right decision, but not giving it recognition under incapacity was erroneous. 

This could be seen in the case which was in front of the Supreme Court where the army personnel’s plea of defense based upon depression was rejected. The court failed to take mindset of individuals who are joining armed service, as before joining they are expected to be aggressive and obedient which is different from that of a civilian. Also, armed service personnel, witness violence, loud noise and unruly things which impacts their cognitive functioning and physical attributes. Which leads to depression or Post Traumatic Stress Disorder, when a person is suffering from these, they experience irresistible impulses which are not done voluntarily and under due conscience. The court also failed to take into consideration that, individuals suffering from depression have the highest suicide rate amongst them, from this it can be derived that they have threshold of taking their own lives because they see no other option. From this it can deduced that while they are committing a crime, they are unable to see any other option and because of which they commit the crime. 

If all of this is taken into consideration jurists will realize the need of making a separate section of general exception under incapacity for depression. 


By this article, it is clearly demonstrated that how section 84 is different from depression in meaning but similar to the basis and reasoning which is used while awarding defense against a crime. A person who is suffering from depression lacks the same degree of responsibility for his conduct compared to that of a sane person. This gives clarity on how guilty mind is absent which is a necessity for placing a criminal liability. 

Then an attempt to create procedure cum test which can be used in pretrial and intra trial stage to adjudicate the nature and credibility of depression. Also, errors made by Supreme Court are also pointed out, which in short were the narrow interpretation used by the court and lacked a transformative outlook in expanding a defense which is the need of the hour. 

The result of the hypothesis proposed initially can be seen as that depression needs to be included under incapacity so bring relief to people who lack guilty mind while committing crime with no fault of their own. 

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