Intellectual Disabilities And Fitness To Stand Trial Under The Bhartiya Nagrik Suraksha Sanhita

While the procedure laid out in the older CrPC and the new BNSS is largely the same, there is a change in nomenclature used to describe mental health conditions under the competence doctrine

A. Introduction

‘Fitness to stand trial’ or competence to stand trial (hereafter “Competence doctrine”) is a legal doctrine central to the principle of fair trial. It deals with a situation where accused persons may not have the mental capacity to participate in a criminal trial or comprehend the allegations against them. This principle is distinct from the closely connected concept of ‘mental disorder defence’ which is relied upon as an exception to criminal liability for the commission of an offence¹.

Competence doctrine is enshrined in the Code of Criminal Procedure, 1973 (“CrPC”) and the Bhartiya Nagrik Suraksha Sanhita (“BNSS”) under the chapter, “Provisions as to accused persons of unsound mind”². Both the CrPC and BNSS provide a detailed procedure for dealing with a situation where an accused person is suspected of being incompetent to stand trial due to a mental health condition; including the process for determining competency, as well as consequent steps which may be taken upon a determination of incompetence such as postponement of trial, releasing the person on bail, committing them to a mental health facility etc.

While the procedure laid out in the older CrPC and the new BNSS are largely the same, there is a change in nomenclature used to describe the mental health conditions under the competence doctrine. Both these statutes provide for determination of competence based on an assessment of whether the concerned individual suffers from an “unsound mind”. While, the CrPC used the term “mental retardation”, BNSS replaces this with the term “intellectual disabilities”. Courts are guided by these terms while determining the different types of mental health conditions which may result in an accused person being unfit to stand trial. Even so, none of these terms are expressly defined in the CrPC or BNSS.

B. Unsoundness of mind and the competence doctrine

While the term unsound mind is undefined, Courts have interpreted this term broadly as being equivalent to insanity, i.e., such a defect of reason, from disease of the mind, as not to know the nature and quality of the act, or that it was wrong³. For the purposes of the competence doctrine, unsoundness of mind should be such that it renders a person incapable of making a defence⁴. To determine such incapacity, Courts are required to seek medical evaluation of the accused person as per the procedure provided in the CrPC and BNSS itself.

It is crucial to understand that the competence doctrine applies to an accused person who may be suffering from any mental health condition, at the time when the trial commences, not when the offence is committed. Thus, the protection bestowed by the competence doctrine is to an accused person who may be rendered incapable to understand the charges against them, participate in the trial process and/or make a proper defence during the trial.

Consequently, while unsoundness of mind may even be equated to insanity, Courts applying the competence doctrine are required to focus on making a determination whether the accused person who is on trial is capable of comprehending the charges against him, comprehending the court proceedings itself, capable of responding to questions regarding his alleged offence, putting forth any particular facts and circumstances which can exonerate the accused person during the trial etc. A person rendered incapable due to unsoundness of mind to fully participate in the trial cannot be prosecuted as it would be patently unfair to prosecute such a person.

Thus, medical evaluation of the accused person assumes significance in evaluating competence. The duty of the Court to assess competence is aided by such medical evaluation and, in the course of arriving at a final determination on competence to stand trial, Courts have referred to and relied upon the definition of ‘mental illness’ in other statutes such as the Mental Health Act, 1987 (now repealed and replaced by the Mental Healthcare Act, 2017) as well as Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, now replaced by the Rights of Persons with Disabilities Act, 2016 (“RPwD”)⁵.

The Mental Healthcare Act, 2017 (“MHA”), defines ‘mental illness’⁶ 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 sub-normality of intelligence.”

Prior to enactment of BNSS, ‘intellectual disability’ did not find a reference in the CrPC. The RPwD Act defines ‘intellectual disability’ inclusively as a condition characterised by significant limitation both in intellectual functioning (reasoning, learning, problem solving) and adaptive behaviour which covers a range of every day, social and practical skills, including specific learning disabilities and autism spectrum disorder⁷.

C. Intellectual disability and the changing paradigm of competence doctrine from CrPC to BNSS

The references in the CrPC were to ‘lunacy,’ and ‘mental retardation’, which have been at variance with the terminology used in statutes such as the MHA and the RPwD. The BNSS remedies this by using ‘unsoundness of mind’ and ‘intellectual disability.’

Courts have grappled with interpreting unsoundness of mind for the purposes of the competence doctrine. While the MHA and RPwD provide reference points to understand unsoundness of mind, these definitions of mental illness, however, limit the definition ‘mental retardation’ to “arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence.”

Thus, while the framework under CrPC focused on insanity, mental illness and mental retardation; intellectual disability as defined in RPwD, and now expressly included in the BNSS, is a wider and inclusive definition which encompasses conditions characterised by significant limitation in intellectual functioning (reasoning, learning, problem solving). The use of intellectual disability, instead of mental retardation under the BNSS widens the scope of the competence doctrine⁸. As a result, mental health conditions which did not clearly fall into the scope of a mental illness or mental retardation, but nevertheless contributed to incapacity to make a defence due to significant limitation in intellectual functioning may now be recognised under the competence doctrine.

In this backdrop, a recent decision of the Kerala High Court leads the way in interpreting and applying the competence doctrine under BNSS. Faced with a situation of an accused suffering from Alzheimer’s Dementia⁹, the Kerala High Court held that Alzheimer’s Dementia was a mental disability falling within the meaning of intellectual disability, provided it was at a stage where the accused person was incapable of making a defence.

Significantly, though the provisions of CrPC were applicable, the Court applied the BNSS provisions retrospectively to this particular case to extend the benefit of the inclusion of ‘intellectual disability’ to this accused. The Court here reasoned that there was no vested right against retrospective application of procedural laws.

Moreover, the Court opined that if the provisions of the BNSS were not extended retrospectively in cases of intellectual disability, there would be a failure of fair trial¹⁰ and violation of the right to equality since two persons suffering from intellectual disability would be treated differently under the CrPC and the BNSS.

The judgment of the Kerala High Court recognizes that while the provisions encompassing the competence doctrine under CrPC and BNSS are procedural in nature, these provisions aid in protecting the substantive right to a fair trial.

Jurisprudence around the BNSS framework for competence doctrine are still emerging. The emphasis on the Courts’ role in facilitating persons with disability signals a change in the approach of the legislature and judiciary to a more inclusive understanding of incapacity and the rights of accused persons.

Disclaimer – The views expressed in this article are the personal views of the authors and are purely informative in nature.