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The significance of Fitness to Stand Trial in Criminal Justice


Through the pages of this research article, I have attempted to introduce, discuss and summarise the legal construct of fitness to stand trial in criminal justice and its diverse aspects by creating a comparative study of some of the leading democracies in the world. The issue of the defendant’s mental health and its role in preventing the criminalisation of the mentally ill is one of the most forsaken topics in law schools throughout the country and globe. Nevertheless, this subject holds immense significance as most criminals display signs of mental illness at early stages, many of which render them incapable of forming a justifiable defence. Furthermore, many young law students and professionals may be unaware and confuse the defence of insanity or unsoundness of mind with the fitness to stand trial due to their lack of awareness of this concept; this paper, through its analytical and descriptive approach, attempts to draw a clear line of demarcation between the two by accentuating their differences and similarities.


Fair trial, Competency, Insanity, Code of Criminal Procedure, Indian Penal Code


Inspired by the Latin maxim, “Ei Incumbit Probation, Qui Dicit, Non-Qui Negat”, i.e., everyone is innocent until proven guilty; law bestows upon accused persons and undertrial prisoners some specific rights. Such privileges help preserve their Right to life and dignity through the various stages of their trial, from the moment of accusation to acquittal or conviction. One of the most basic internationally recognised human rights is an accused’s Right to a fair trial. This Right is indispensable in preventing the misuse of one of the most coercive authorities of the state, i.e., the power to arrest, prosecute and punish individuals. It entails the presumption of innocence, the rule of law, opposition to overcriminalisation, recourse to incarceration and, most importantly, the obligation to ensure an individual’s mental and psychological fitness to stand a criminal trial.

Governed under sections 328 and 329 of the Code of Criminal Procedure, 1973 (CrPC)[1]Fitness to stand trial is an enquiry regarding the ability of the defendant to participate in and understand the nature of the legal proceedings initiated against them at the stage of investigation or trial, respectively. An individual’s mental and physical presence is essential in an equitable and righteous court of law, especially wherein an individual’s words may hold the ability to make or break their life. Black’s Law Dictionary has defined competency as a person’s “mental ability to understand problems and to make decisions”. Nevertheless, due to the overgeneralisation of the concept of competency, as evidenced by definition, the meaning of this word evolved on the basis of precedents and popular opinions to find itself appropriate to the changing dynamics of society. The paper briefly touches on the defence of insanity available under the Indian Penal Code, 1860, only to differentiate it from mental and psychological competency to stand trial. However, through various famous judicial pronouncements, case laws and relevant sections of Indian legislations and foreign nations, this paper has traced the evolution of the notion of fitness to stand trial and compared the variance in its application in various parts of the globe.

Research Methodology

The academic and legal research carried out in the pursuance of the submission of this research article on the topic of fitness to stand trial, and the defence of insanity has been carried out digitally through various legal journals, academic papers, interviews of leading researchers in the field of criminology and the blogs of various governmental organisations. Judicial precedents and the reasoning provided by judges and lawyers in pursuing their causes have played a vital role in forming the core viewpoint of this paper. This study involves an amalgamation of the discipline of psychology and law while rediscovering the situation of those undertrials or accused by covering the legal features and the social factors involved. The paper traces the legal provisions laid out under the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973, relating to determining and establishing an individual’s competency to stand trial.

Review of Literature

With the duty to constitutionally safeguard the fundamental Right of an individual to a fair trial and to protect the accused persons against erroneous convictions, the Magistrate or the Sessions Court, at the stage of inquiry or trial, have the authority to conduct an inquiry into the defendant’s fitness to stand trial. The procedure to determine and establish the fitness of a defendant finds its basis in the moral and legal obligation of the court to ensure that no person should be subjected to legal proceedings against them while their decision-making autonomy is impaired in a manner that they are unable to rationally understand the purpose, nature and reason of the proceedings.

A number of mental disorders, mental incapacities and neurobiological conditions interfere with an individual’s cognitive, emotional, behavioural and psychological competency, rendering that person incapable of partaking in their role in the trial actively and rationally. Wherein the due course of law is able to establish the defendant’s incompetency, the trial is postponed, and the mentally unfit is sent to the psychiatric ward for detention or is released under the care of the family and friends for treatments and rehabilitation. There is no time specified under the Indian law after the lapse of which the treatment is to end and the trial resume. On the other hand, the treatment can continue for an unfathomed time until the defendant is deemed competent enough to stand trial, and their effective participation can be ensured.

While cognitive limitations or underlying psychiatric disorders may impair a person’s competency, the presence of a mental illness alone is not sufficient to render a person incapable of participating in legal proceedings. No mental disorder incapacitates people in the same manner but varies as per the genetic, social, cultural, emotional and psychological factors personal to that individual. Therefore, one of the most peculiar legal and clinical conundrums faced by legal professionals and psychologists working together is the determination of who is incapable of standing trial, a defendant with a severe mental illness that does not render them unfit or a defendant with a less severe or mild mental illness that interferes with their cognitive abilities.

In the case of State of Gujarat v. Manjuben[2]The Gujarat High Court held that continuing proceedings against a mentally unsound person and finding them guilty on charges that their mental incapacity renders them incapable of understanding would violate Article 21 of the Indian Constitution, which entails the Right to a free and fair trial. It was observed that every party (the magistrate, trial court judge, public prosecutor, and investigating officer) to the legal proceedings shared an equal duty to ensure the defendant is fit to stand trial through its entire duration. The court must inquire into the fitness of the accused at the first sign of the existence of a mental illness or intellectual disability because any delay or failure in its diagnosis and recognition may nullify the entire trial, as observed by the honourable Supreme Court in tha case of Vivian Rodricks v. West Bengal.[3]. While the Indian judicial system has not specified how a defendant’s ability or inability to enter their defence is determined or what it comprises, it has provided some hints on what the capability to base a defence necessitates.

Therefore, to simplify the determination process and make it more objectively quantifiable, jurists and legal professionals have evolved a few queries whose fulfilment help in determining and establishing one competency to stand trial.  

  1. The first question revolves around the diagnosis of an existing mental disorder or mental disability severe enough that it should be capable of rendering the defendant incompetent. 
  2. The incompetency cause should be context-specific functional impairment, i.e., the defendant should not be capable of instructing his counsel and participating in the legal proceedings. 
  3. Eventually, if incapacity is established and mental disorder is diagnosed, are they a result of one another or do they point towards the existence of a third psychological or neurobiological impairment? 

Analysis of the procedure to determine the competency

Chapter 25 of the Criminal Procedure Code, 1973[4] contains the Indian law on fitness to stand trial. Specifically, sections 328 and 329 of the Code deal with the fitness enquiry where the accused is either of unsound mind or has an intellectual disability. However, it is referred to as mental retardation under these provisions but usually revolves around mental illnesses. A fitness inquiry can be warranted at any stage of the inquiry or trial, whenever the magistrate holding the inquiry has reason to believe under section 328 or when it appears to the magistrate or court presiding over the trial under section 329 that the defendant is of unsound mind or is suffering from an intellectual disability making him incapable of defending himself.[5]. The evidentiary threshold to institute a fitness inquiry is lower than that of beyond reasonable doubt and can be embarked upon based on documentary evidence or even witness testimony. Nonetheless, there must be sufficient either type of evidence for the court to have a reason to doubt or believe that the defendant may be unfit to stand trial. If evidence supporting the claim is correct, the judge is under a mandatory legal obligation to refer the person in question to a government mental health facility under an expert for additional examination since failure to do so can render the trial null and void.

This inquiry by the psychiatrist is also referred to as the clinical stage of the fitness inquiry. It involves the assessment of all the medical records, forensic history, psychiatric history records (if any), socio-economic history, substance abuse history and the details of the events leading up to the present assessment. Hospitalisation may also be mandated if the person needs to be monitored over a span of time before a definite opinion about the diagnosis can be reached. The duration of observation can vary from days to weeks according to the needs and the complications of the assessment since no specific time period has been stipulated by law. However, the main issue remains the lack of uniformity, lack of standardisation and the use of specific psychological terms in the assessment process that legal professionals cannot easily understand.

After this referral and clinical determination, the next step in the procedure of determining one’s fitness to stand trial is a judicial inquiry as soon as the court receives the report by the expert. After all, a fitness inquiry is ultimately a judicial decision aided by a psychiatrist’s clinical determination of mental illness or intellectual disability. When the report of the expert doctor comes back negative regarding the soundness or unsoundness of the accused, it can be appealed to the board constituted by the procedure of law under sections 328 and 329 of the CrPC. However, it can only be questioned on the basis of the doctor’s qualifications, objectivity, credentials, procedure, and methods followed that led to the creation of a report declaring so. Since the fitness report is usually short, with 5 to 6 lines of technical-medical information without any assisting information for the convenience of legal professionals, it is challenging for the judges and the lawyers to trust it in the absence of pertinent technical expertise. Therefore, there is a growing consensus regarding the need for legal professionals’ training in primary mental health principles that are required in case reports. The court should not only be satisfied with the existence of a legal proceeding but must find the defendant unable to enter a valid defence. Thus, the lack of a coherent understanding of the ‘ability to enter a defence’ concocts problems of inconsistency and arbitrariness.

The aftermath of the declaration of incompetency and the resumption of the trial

If the accused is found unfit to stand trial due to a mental illness, the trial is suspended until they are found fit to stand trial again. The judge then determines the bail and custody of the accused during the inquiry or trial as per the procedure established by section 330 of the Code of Criminal Procedure[6]. In such cases, either the accused is released to their friends and family to ensure proper treatment or is contained in a mental health establishment for expert care, depending upon the need and availability of resources.

Contrarily, in cases where the person is found to suffer from an intellectual disability, the law requires putting an end to the inquiry (under section 328) or trial (under section 329) and discharging the person (under section 330) who may be detained later on in safe custody or may be released to family or friends. Although Law Commissions have recommended amending the prevailing notion of intellectual disability, which treats it as incurable because of which the person would never regain the requisite capacity to stand trial.

Sections 331[7], 332[8] and 337[9] of the Code of Criminal Procedure lays out a vague and ambiguous procedure governing the resumption of inquiry or trial when an accused regains the capacity to stand trial. The trial can be resumed by submitting a fitness report to the court after subjecting the defendant to a periodic evaluation or on a fresh application by either of the parties. Despite the repeated recommendations of the Law Commission, especially in its 154th report, no time limit has been stipulated for the resumption of trial where the accused is repeatedly found mentally ill. In cases of repeated diagnosis by the assigned officer every six months, the court can continue to recourse to section 330 of the CrPC.

Concept of competency around the globe

The Indian jurisprudence attaches specific characteristics to the competency to make a valid defence: the ability of the accused person to answer the charges against them, appreciate the evidence that has been presented against them and understand the proceedings in court against them.

On the other hand, as per the Australian legal system, there are three conditions that a person is required to fulfil to be competent enough to stand trial. Firstly, one should be able to understand and comprehend the process of the proceeding taking place in the court. Second, they should be able to understand the charges against them as outcomes of their actions as a punishment levied upon them by the state. Lastly, they should be able to instruct their legal counsel to make a valid defence. [10]

In the United States of America, the infamous case of Dusky v. US Trial, 1960[11]It has been sourced as the basis for developing the requirements for establishing the fitness to stand trial. The defendant-appellant, Milton Dusky, was facing rape charges wherein a pre-trial examination of his psyche revealed symptoms of schizophrenia which he believed to be falsely framed for the crime and could not assist his counsel effectively. However, the court held him fit to stand trial and gave three conditions that established one’s competency to stand trial. One, a factual understanding of the proceedings (when, where, what). Second, a rational understanding of the proceedings (I am accused of committing the crime of rape against XYZ, and the state is prosecuting me for my misdeeds). Lastly, the defendant should be able to consult their lawyer or legal counsel. Nevertheless, these conditions vary from one state to another according to their precedents and legislations in the fifty states of America.

The Canadian legal system is relatively similar to the systems of Australia and the United States of America. It also has three conditions the judicial officers follow while determining one’s fitness and unfitness to stand trial. The capability to understand the objective and nature of the legal proceedings, the capacity to comprehend the consequences of the trial, and the ability to correspond with the counsel during the entire process.[12]

Defence of Insanity Vs. Fitness to stand trial

The confusion between the defence of insanity and the fitness to stand trial are very different in the colloquial sense itself.

The defence of insanity or unsoundness of mind is incorporated in section 84 of the Indian Penal Code, 1860, and states that “Nothing is an offence which is done by a person who, at the time of doing it, because of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing, what is either wrong or contrary to law.”[13] Moreover, under section 333 of the Code of Criminal Procedure, a criminal proceeding can be initiated and conducted successfully against a person who may appear to be of unsound mind at the commission of the crime but is sound enough to understand the nature and consequences of his actions and the legal proceedings at the time of the enquiry and trial[14]. Therefore, the defence of insanity is a retrospective assessment of the defendant’s psyche at the time of the commission of the offence. It refers to the inability of the accused to understand the nature and consequences of their actions while committing the offence due to intellectual disability or unsoundness of mind.

On the other hand, the fitness to stand trial refers to the prospective analysis of the defendant’s mental ability, wherein the person is rendered incapable of participating in the legal proceedings and enquiry after the commission of the crime, either by some pre-existing mental disability or the aggravating circumstances after the commission of the crime. In such cases, it is not necessary that the person may be unsound since the commission of the crime but should not be mentally and psychologically capable of defending himself.


Through the academic and legal research conducted in the pursuance of this article, specific inadequacies of the criminal justice system have come to the surface. While we, as the most advanced species on the planet, pride ourselves on our systems and institutions, we have yet to walk a long path to understanding human nature. Despite the increasing emphasis on mental health, we are yet to synthesise this discipline with the criminal justice system. We are still dependent on the rudimentary definitions of intellectual disability, which treats it as an incurable condition that gives the accused persons indefinite immunity causing a miscarriage of justice.

Due to obscurity within section 331 of the CrPC[15] Regarding the time period specified for the suspension of the trial, there is a gap in tracking cases where accused persons have been found unfit to stand trial but have been forgotten like a pin in a haystack over time. Unsurprisingly, there have been cases where trials were adjourned for longer than the span of the stipulated sentence. The case Veena Sethi v. the State of Bihar[16], first dealt with the issue of indefinite detention, wherein the court directed the release of prisoners who had previously been found unfit to stand trial and had to remain in jail for 20-30 years because of the lethargy and negligence of the State authorities.

A uniform and standardised method of determining the competency of defendants should be devised, one that is not subjective to the psychologist who conducted the research and can be applicable across jurisdictions. Last but not least, a basic introduction to psychological concepts necessary for legal inquiry should be mandated in law degrees so that the legal professionals are not entirely up to the mercy of psychologists to interpret the psychological jargon in the fitness report for them.


The fitness to stand trial is an essential cornerstone of democracy as it checks the powers of the government by providing fundamental rights to the people who face the threat of prosecution. It is a legal construct that places the individual’s mental capacity equal to the physical competence required for a free and fair trial. A mental illness can be both severe and mild, ranging from depression to substance abuse inducing incompetence. However, one must not forget that not everyone diagnosed with a mental illness is incapable of defending themselves in a trial. It is only when the illness can hamper the cognitive, behavioural and mental capacity that renders a person capable or incapable of forming a defence. The problems associated with this concept can be resolved just as quickly if the awareness among legal professionals on mental health issues and their relevance to criminal trial processes is highlighted and introduced as an essential part of legal education.

Name – Paridhi Gupta

College – Symbiosis Law School, NOIDA

Batch – 2021-2026

Year – Second-year B.A.LL.B. student (2nd year)

[1] Code of Criminal Procedure, § 328 & 329, No. 2, Acts of Parliament, 1973 (India)

[2] State of Gujarat v. Manjuben (2019) 2 GLR 1410 (India)

[3] Vivian Rodricks v. West Bengal (1969) 3 SCC 176 (India)

[4] Code of Criminal Procedure, No. 2, Acts of Parliament, 1973 (India)

[5] In Vivian Rodricks v. West Bengal, the Supreme Court observed that the High Court, while hearing an appeal against conviction by the lower court or a reference for confirmation of death sentence, must ensure that the defendant is in an adequate state physically and mentally to participate in the proceedings or be able to give suitable instruction to their legal counsel. This indicates that the fitness to stand trial inquiries can be conducted irrespectively at lower and appellate stages of the trial.

[6] Code of Criminal Procedure, § 330, No. 2, Acts of Parliament, 1973 (India)

[7] Code of Criminal Procedure, § 331, No. 2, Acts of Parliament, 1973 (India)

[8] Under s.328 of the Code of Criminal Procedure, the court initially refers to a civil surgeon or medical officer whose examination is reduced to writing. Thus, there is a possibility that the civil surgeon might rule out the unsoundness in the first instance, and there is no further referral.

[9] Code of Criminal Procedure, § 337, No. 2, Acts of Parliament, 1973 (India)

[10] Unfitness to stand trial, https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-dp-81/7-access-to-justice/unfitness-to-stand-trial, (last visited Aug. 10, 2022)

[11] Dusky v. United States, (1960) 362 US 402 (USA)

[12] Criminal Code, § 46, R. S. C., as amended, 1992 (Canada)

[13] Indian Penal Code, § 84, No. 45, Acts of Parliament, 1860 (India)

[14] Code of Criminal Procedure, § 333, No. 2, Acts of Parliament, 1973 (India)

[15] S.331 of the Code of Criminal Procedure reads that the court “may at any time after the person concerned has ceased to be of unsound mind.”

[16] Veena Sethi v. the State of Bihar (1982) 2 SCC 583