BNSS offers broader protection to accused with mental illness or intellectual disability, applies retrospectively: Kerala High Court

Judge K Babu decided that BNSS will apply retroactively to proceedings before 1 July 2024 in order to ensure a fair trial for people with intellectual disabilities or mental disabilities.

The court considered whether an accused suffering from dementia is competent to defend himself in court. It concluded that persons suffering from mental disability such as Alzheimer's dementia cannot be distinguished under the CrPC and the BNSS as it would amount to a violation of Article 14 of the Constitution.

“As I have explained above, Chapter XXVII of the Sanhita provides broader protection to a person with mental illness or a person with intellectual disability. If two persons with mental disability or intellectual disability are treated differently, one under the law and the other under the Sanhita, it is a violation of Article 14 of the Constitution. Among equals, the law should be equal and applied equally and they should be treated equally. The guarantee of 'equal protection' under Article 14 is a guarantee of equal treatment of persons in 'equal circumstances'. To safeguard the fundamental right of an individual, the provisions of the Sanhita can be extended retrospectively to all proceedings initiated before 1.7.2024.”

The complainant, a 74-year-old man, is accused of committing offences under Section 13 (Misconduct by a Public Official) of the Prevention of Corruption Act.

The plaintiff stated that he was suffering from Alzheimer's dementia and filed a motion to postpone the hearing before the investigating court and special judge.

The Special Court, while speaking to the plaintiff, found that he was not suffering from any disease or mental illness. As per the orders of the Court, the plaintiff was medically examined and a certificate was issued stating that he was suffering from severe dementia and had little prospect of full recovery. The doctor also pointed out that the mental state of the plaintiff needed to be thoroughly examined by a psychiatrist. The Special Judge, therefore, ordered that the party should undergo a psychiatric examination to obtain a certificate of mental illness. The plaintiff was, therefore, directed to approach the Mental Health Centre to obtain a certificate of his mental state. This order is being challenged in the Supreme Court.

The counsel for the plaintiff argued that the plaintiff, who is suffering from Alzheimer's dementia, is not capable of defending himself and should be granted protection under Chapter XXV of the CrPC which deals with the trial of accused with mental disease. He contended that the plaintiff is suffering from mental disease which falls within the definition of insanity under the CrPC.

The amicus curiae submitted that the court has a heavy responsibility to proceed under Chapter XXV of the Code and Section 105 of the Mental Healthcare Act, 2017, where the plaintiff is unable to defend himself due to Alzheimer's dementia. Amicus further submitted that the court is not precluded from recognizing that dementia is a form of mental disability which can render the defendant unable to defend himself in legal proceedings.

The court found that dementia is a neurodegenerative disease that causes a progressive loss of mental capacity. It noted that people with dementia lose complex brain functions and suffer speech problems and memory loss, and that there is no cure to prevent the disease from progressing.

According to CrPC, the court stated that the Magistrate is required to proceed under Section 328 if the accused is unable to defend himself in court due to insanity. It held that the Magistrate should, after conducting an inquiry, adjourn the proceedings if the accused is found to be incapable. It held that the Magistrate can proceed under Section 328 only if he is satisfied that the accused is not incapable due to insanity and is able to defend himself in court.

Under the CrPC, persons with mental illness or intellectual disability are protected. However, the Mental Health Care Act, 2017 does not recognise intellectual disability in its definition of mental illness. In contrast, the BNSS specifically provides protection to persons with mental illness or intellectual disability.

“A joint reading of the Mental Healthcare Act and the corresponding provisions in the Sanhita shows that the legislature has given a broader basis to the expression 'inability to defend oneself' by including the term 'mental disability'. In passing the Sanhita, the legislature has taken note of the definition of the term 'mental illness' in the Mental Health Care Act, 2017,” the court explained.

The court found that the defendant was entitled to a fair and impartial trial. It found that a mental disability would harm the defendant and prevent a fair trial.

The court observed that the BNSS came into force on July 1, 2024. And all pending proceedings where steps were taken before July 1, 2024, will be dealt with under the CrPC.

However, it held that the provisions of the BNSS must be applied retrospectively to ensure a free trial to accused who suffer from mental disability and are therefore unable to defend themselves. This is because the CrPC does not provide any protection to persons with mental disability.

The Court found that persons with intellectual disability or intellectual retardation cannot be distinguished. The Court therefore found that BNSS will be retroactively applicable to procedures before 1 July 2024 to ensure that protection is also provided to persons with intellectual disability.

In view of the facts of the case, the Court concluded that the Special Judge's order was manifestly illegal and improper. It therefore quashed the order and directed the Special Judge to reconsider the application under the BNSS.

Counsel for the plaintiff: Attorneys T.Kabil Chandran, TDRobin, R.Anjali, Aayshath Najila Schemnad

Counsel for Respondents: Amicus Curiae Renjith B. Marar, Amicus Curiae V. Ramkumar Nambiar

Case number: CRL.MC No. 6370 of 2023

Case title: VI Thankappan v. State of Kerala

Quote: 2024 LiveLaw (Ker) 563