This article is an attempt to analyse the recent judgment of the Supreme Court in X v. State of Maharashtra (MANU/SC/0536/2019) wherein it laid down the law that is to govern post-conviction mental illness in case of impending execution. To fully appreciate the issue, it is important to produce the facts of the case in brief. In this case, the accused “X” was convicted for the brutal rape and murder of two minor girls. The Trial Court found the case to fall within the ambit of “rarest of rare” and awarded death penalty to the accused. The same was confirmed by the High Court and the Supreme Court. Later, a revision application was filed before the Apex Court which was dismissed by circulation. Then, the review application was reopened citing the case of Mohd Arif v. Supreme Court of India (MANU/SC/1788/2016), wherein it was held that all review petitions that have been dismissed by circulation must be reopened. In this “re-opened review petition” it was argued on behalf of the defence that the accused has been awaiting death penalty for 17 years now and has developed acute mental illness meriting the commutation of his death sentence.
The Supreme Court began the judgment by stressing on the importance of reasoning in the sentencing process. It opined that sentencing is an extremely crucial aspect of the criminal justice system as it has severe ramifications upon the liberty of the accused. The Court iterated that for a just sentencing procedure there must be a balance between judicial discretion and the rule of law. Thus, according to the Supreme Court, in order to have a fair sentencing mechanism, the judges must be given the discretion to choose the punishment from the legislatively prescribed range. Moreover, such discretion must be exercised following the judicially set principles. The Court concluded that the sentencing mechanism in Indian would benefit from “uniformity” that can only be brought by the combined effort of legislature and judiciary.
Against the backdrop of the above observation, the Court noted that the prison system in India is plagued by the problems of overcrowding, violence, lack of privacy, and inadequate healthcare facility- all of which have an adverse bearing upon the mental health of the accused. Moreover, criminal cases in India take years to conclude adversely affecting the accused awaiting his fate. In such a scenario, it is extremely likely that the accused may develop mental illness. The Supreme Court held that it is only “reasonable” that the judges take the same (i.e. post-conviction mental illness) into account as a “mitigating factor” in the sentencing procedure. The Court justified its stance by citing the Constitution and its interpretation under various pertinent judgments.
Firstly, the Supreme Court stated that Article 20(1) of the Constitution of India mandates that the convict must possess the “knowledge” of the crime committed by him and he/she must be “communicated” the purpose of the death sentence. Therefore, if a person develops mental illness post his conviction which disables him to understand the purpose of his execution, then the “reason d’etre” of the punishment collapses. Thus, the Court believes that no convict who is awarded capital punishment should be executed if he is unable to understand the purpose of his death sentence. Such inability defeats the very reason for granting the punishment in the first place. The Supreme Court emphasised that one of the most important parts of awarding a death sentence is creating deterrence against the crime. However, this goal of deterrence is neither strengthened nor diminished when a convict suffering from mental illness is put to the sword. Thus, the goal of his punishment loses its meaning.
Secondly, the Supreme Court while citing Navtej Singh Johar v. Union of India (MANU/SC/0947/20180) reiterated that Article 21 of the Constitution protects the right to human dignity in all its shades and colours. This concept of dignity under Article 21 of the Constitution includes “the capacity to understand” which is inherent to all human beings. However, in cases where this capacity is depleted and the convict can no longer understand the purpose of his execution, the right to human dignity mandates the commutation of his/her death sentence. This means that executing a convict who has been suffering from post-conviction mental illness violates his/her right guaranteed under Article 21 of the Constitution.
Thirdly, the Supreme Court stated that a post-conviction mental illness has to be taken into account while evaluating whether or not the case falls within the ambit of the “rarest of rare” doctrine as laid down in the case of Bachan Singh v. State of Punjab (MANU/SC/0055/1982). The Court held that if at any point before execution, a convict is diagnosed with mental illness that takes away his ability to understand the purpose of his punishment, then the rarest of rare doctrine stops applying and the death penalty can no longer be imposed. Thus, relying upon these considerations, the Court held that execution is not permissible in a case where the convict develops post-conviction mental illness.
This stance of the Supreme Court (i.e. commutation of the death penalty in case of post-conviction mental illness) is in accordance with the growing nature of universal human rights jurisprudence. The United Nations Economic and Social Council in its resolution 1989/64 recommended the UN state parties to abolish the death penalty for persons suffering from “mental retardation or extremely limited mental competence” whether at the time of sentencing or execution. William A. Schabs, in “International Norms for the Execution of the Insane and Mentally Retarded states that Customary International Law prohibits the execution of an insane prisoner. The United Kingdome has abolished the death penalty with the last executions taking place in 1964. Prior to its abolition, the law prohibited hanging of the mentally insane. Recently, the Supreme Court of the United States in Atkins v. Virginia (MANU/USSC/0061/2002) declared that the execution of “intellectually disabled persons” violates the Eighth Amendment to the US Constitution which prohibits awarding cruel and unusual punishments.
The only problematic part of this view-point of the Supreme Court is that it wrongly labels post-conviction mental illness as a “mitigating factor”. As per the ruling of the constitutional bench in Bachan Singh v. State of Punjab (MANU/SC/0055/1982), after the conviction of an accused, his sentence is to be decided by taking into account various aggravating and mitigating factors applicable in the case. It is nonsensical to label post-conviction mental illness as a mitigating factor as it manifests after the pronouncement of the sentence when the mitigating and aggravating factors have already been considered by the court. It would be more appropriate to label post-conviction mental illness as a “commuting factor” applicable before the execution has taken place. A commuting factor is any factor that requires commutation of a death sentence at any stage before execution, unlike a mitigating factor that is used for the purpose of deciding the punishment and is applicable only at the stage of sentencing.
Thereafter, the Supreme Court noted that developing post-conviction mental illness is not enough for the commutation of a convict’s death sentence. For such commutation to be applicable, the convict must suffer from mental illness in its “severe or extreme form”. The Court laid down the test of severity vis-à-vis mental illness by the aid of the “International Classification of Diseases” which defines severe mental illness as:
- Schizophrenia or delusional disorders;
- Mood (affective) disorders, including depressive, manic and bipolar forms;
- Neuroses, including phobic, panic and obsessive-compulsive disorders;
- Behavioural disorders, including eating, stress and sleep disorders; and
- Personality disorders of different kinds.
This observation of the Supreme Court (i.e. in case of imposition of the death penalty, only convicts who have developed a “severe” mental illness post-conviction are eligible for the commutation of the sentence) is inconsiderate towards the situation of the convicts awaiting execution. It is no secret that in India a convict put on the death row has to wait for an excruciatingly long period of time for his execution to take place. The same has been recognised by the Supreme Court itself in T.V. Vatheeswaran v. State of Tamil Nadu (MANU/SC/0383/1983) wherein it was observed that a prisoner awaiting execution in India has to endure extreme suffering on account of living for a prolonged period in the shadow of death. The recent data (recorded in 2018) states that presently there are 371 Indians on the death row and only four have been executed in the past thirteen years. These facts coupled with the decision of the Supreme Court basically mean that a convict who is sentenced to death, if he/she develops mental illness that doesn’t qualify as “extreme” and keeps suffering from the same for decades while awaiting his execution in dehumanizing prison conditions, the courts would still not deem such person’s sentence fit for commutation.
Moreover, once a person enters the prison, it is the duty of the State to take care of his mental and physical well-being. It is hard to understand why a prisoner on the death row should keep suffering because of the State’s incompetence. Execution of a person who has battled mental illness for years languishing in a prison inhumanely disregards the unsanctioned suffering he/she has endured before being put to the sword.
India continues to be one of the few democratic countries that inflict capital punishment under their penal provisions. In Bachan Singh, the Supreme Court restricted its application to the “rarest of rare cases”. However, both the legislature and the judiciary have failed to give due recognition to the sufferings of the prisoners who have to wait for years in the shadow of death while battling post-conviction mental illness. It is an established rule of law that Article 21 of the Constitution continues to operate until the prisoner’s last breath. This sacred right of the prisoners put on the death row has been blatantly violated for years while they’re awaiting execution. Thus, the Supreme Court ought to have taken into account all shades of post-conviction mental illness as a reasonable factor for the commutation of the death penalty and not just its “severe” form.
The article has been written by Utkarsh Krishna
This article was first published in the Blog namely The Criminal Law Blog