On October 21, 2016, the Supreme Court of Pakistan turned down the plea to delay the hanging of Imdad Ali, a 50 year-old schizophrenic man convicted in 2002 for murdering a cleric.

Taking cues from the dictionary meaning of schizophrenia, as well as the Indian Supreme Court's judgment in the case of Amrit Bhushan Gupta vs Union of India 1976, the Pakistani SC concluded that this disease was not a permanent mental disorder and hence didn't offer sufficient grounds to plead insanity.

As the debate goes on about the fairness of this judgment, it is worthwhile exploring the slippery slope of insanity defence in criminal jurisprudence.

In criminal law, to establish culpability for a crime, it is vital to prove that the person accused actually committed the act and that he acted out of his/her own free will, intentionally and with whatever reasons he/she may have had.

A person suffering from a mental disorder may not be in a position to rationalise their actions at the time of committing the crime. At the stage of trial, they may not be in a position to defend themselves. Understanding these ethical nuances, criminal laws in most countries allow for an insanity plea, which once proven, can absolve the accused of the crime.

Also read: Plight of mentally ill convicts

But not every accused who is mentally insane is automatically absolved of all responsibility for the crime committed. There is a difference between legal insanity and medical insanity. Medical insanity could include any kind of mental illness — ranging from permanent disorders like lunacy to temporary psychosis like bipolar syndrome. Legal insanity demands not only mental illness but also loss of reasoning power at the time when the offence was committed. As per the M’Naghten rule, if a mentally ill person had knowledge that what they were doing was wrong or against the law, they should be punished for the crime.

In the case of Amrit Bhushan Gupta vs Union of India, the same test was applied to evaluate the insanity plea under Section 84 of the Indian Penal Code. Even though medical experts certified that the defendant had been suffering from schizophrenia, the evidence submitted in the lower courts proved that he knew the nature of his acts and hence was liable for punishment.

In various other judgements of the Indian Supreme Court, it has been established that in addition to mental illness, aspects like motive for the crime, previous history in relation to the mental condition of the accused, the state of their mind at the time of the offence, and the events immediately after the incident that throw a light on their mental condition (for example, attempting to hide evidence or absconding to avoid arrest) are also to be factored in.

While international laws regarding insanity also follow similar principles, obtaining a fair judgement in this part of the world (both India and Pakistan) may be difficult for a number of reasons:

• The need to visit mental health counselors or psychologists is hardly understood. The taboo associated with any mental irregularity leads to such behaviours going under-reported. With no attention paid to abnormal behaviour patterns and lack of availability of medical records substantiating this, it becomes nearly impossible to prove insanity where it may have been the case.

• As soon as a crime is committed, ideally a forensic psychiatrist should get involved in the case along with the investigating officer. Studying past medical reports to check on past behaviours or substance abuse, autopsy of the victim’s body, interviews with the accused and family members are crucial in making a proper assessment. Unfortunately, we neither have trained forensic psychiatrists, investigating officers or lower court judges who insist that such reports be produced during the legal process.

• Conditions inside prisons are also often responsible for worsening the mental conditions of under-trial prisoners. A study conducted in India in 2011 found that as many as 30% of the prisoners suffered from a mental disorder and 70% from either a mental disorder or substance abuse. The lack of legal education and the high proportion of under-privileged among under-trials further hamper the chances of getting an insanity plea.

As per the Imdad Ali judgment, the Pakistani SC took cognisance of the fact that the defendant was diagnosed with genetic paranoid schizophrenia by government medical professionals in 2012 (a decade after he had committed the murder). However, the burden of proof for establishing insanity at the time of the crime lay with the accused. And since Imdad’s medical history wasn’t recorded before, it couldn’t be proven whether he was suffering from a schizophrenic attack at the time of murder. Eventually, his insanity plea was rejected. In the absence of evidence, a case can be made that the SC wasn’t exactly incorrect in upholding the judgments of the lower courts.

For more: ‘50m Pakistanis suffering from mental disorders’

The court was also not wrong in pointing out that medical advances and rehabilitation have made the treatment of schizophrenia possible. But while there is a possibility of a person living an absolutely normal life with a treatable form of schizophrenia, there is also a chance that a person cannot be treated at all. The court was not exactly fair in dismissing this condition as a mere reaction to stress either. Medical research has established that having a first degree relative with schizophrenia, the bio-chemical environment of the womb during pregnancy, social isolation especially during formative years, and substance abuse are just some of the many risk factors that contribute to developing the condition. Hence, each case of schizophrenia has to be judged on its own merit rather than through generalisations.

But it is the plea for delaying his execution pending his medical treatment that warrants the most attention. Pakistan is a signatory to the International Covenant on Civil and Political Rights, which urges states practicing death penalty to not impose it “on a person suffering from any mental or intellectual disabilities or to execute any such person”. In 2013, in Shatrughan Chauhan vs Union of India, the Supreme Court of India upheld this covenant to which India is party and stated that those suffering from mental insanity and schizophrenia cannot be executed.

Since this punishment serves a purpose of retribution, it is not ethical to carry out the sentence until the person is capable enough of understanding why he is being punished.

For a schizophrenic, his world is as real as ours. The travesty of justice is that no real attempt seems to have been made to understand his state of mind. This apathy towards the mentally ill is the real illness and their neglect a crime.