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Mental illness has the right to live with dignity
Introduction
People with serious mental illnesses are at a substantial disadvantage in defending themselves when they face criminal charges, and those difficulties are compounded when the charges are so serious that the death penalty is sought. Stigma and fear are significant factors in jury verdicts in such cases, and the criminal justice system too often fails to do justice. As a result, people with mental illness are at heightened risk of losing their lives to unfair and capricious application of the death penalty.
Executing a mentally ill person is condemned widely by international law the UN Commission on Human Rights urged all states not to impose it on a person suffering from any mental disorder and it has repeatedly urged India to enact domestic legislation that brings the practice in line with international legal standards. The UN ECOSOC, Implementation of Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty, requires the elimination of the death penalty for persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence of execution.
In the case of Accused X vs State of Maharashtra, [footnoteRef:2]Justice NV Ramana, Justice Mohan M. Shantanagoudar, and Justice Indira Banerjee held that ‘every person with mental illness shall have a right to live with dignity’. In this case, the accused was sentenced to a death sentence due to the charge of the offense of rape and murder of two girls. In this case, Court justified the post-conviction mental illness as a mitigating factor for converting a death sentence to life imprisonment. In this case, the question before the Court to find out answers about [2: REVIEW PETITION (CRIMINAL) NO. 301 OF 2008]
- What is the relationship between mental illness and crime?
- How can culpability be assessed for sentencing those with mental illness?
- Is treatment better suited than punishment?
It is well acknowledged fact throughout the world that, prisons are difficult places to be in.[footnoteRef:3] The World Health Organization and the International Red Cross, identify multiple circumstances such as overcrowding, various forms of violence, enforced solitude, lack of privacy, inadequate health care facilities, concerns about family etc, can take a toll on the mental health of the prisoners. Due to the prevailing lack of awareness about such issues, the prisoners have no recourse and their mental health keeps on degrading day by day[footnoteRef:4]. [3: REVIEW PETITION (CRIMINAL) NO. 301 OF 2008] [4: Ibidi ]
Mental illness/ Mental  disorder
Mental illness means a substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize 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, especially characterized by subnormality of intelligence.[footnoteRef:5] [5: section 2(s), Mental Healthcare Act, 2017 ]
Prisoner with mental illness means a person with mental illness who is an under-trial or convicted of an offense and detained in a jail or prison.[footnoteRef:6] [6: Section 2(w) Mental Healthcare Act, 2017 ]
Mental disorder is a syndrome characterized by clinically significant disturbance in an individuals cognition,   emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress in social, occupational, or other important activities. [footnoteRef:7] [7: The Diagnostic and Statistical Manual of Mental  Disorders  (DSM), 5th edition (DSM5), 2013]
Severe Mental Illness under the International Classification of Diseases (ICD), which is accepted under Section 3 of the Mental Health Care Act, 2017, generally includeÂ
- schizophrenic and delusional disorders
- mood (affective) disorders, including depressive, manic, and bipolar forms
- neuroses, including phobic, panic, and obsessive-compulsive disorders
- behavioral disorders, including eating, sleep, and stress disorders
- personality disorders of different kinds.
Capital Punishment to Mentally ill prisoners
Now the question arises whether the imposition of the death penalty upon such Mentally Ill prisoners is justified, who has clearly impaired their abilities to even understand the nature and purpose of such punishment and the reasons for such imposition.
Because means a mad man is like one who is absent[footnoteRef:8] and punished by his own madness[footnoteRef:9]. [8: Furious absentis law est] [9: Furious furore sui punier]
It is the well-settled principle of law that Sentencing is the appropriate allocation of criminal sanctions, which is mostly given by the judicial branch[footnoteRef:10]. [10: Nicola Padfield, Rod Morgan, and Mike Maguire, Out of Court, out of sight? Criminal sanctions and noÂjudicial decision making, The Oxford Handbook of Criminology (5th Ed.).]
This process occurring at the end of a trial still has a large impact on the efficacy of a Criminal Justice System and sentencing is a socioÂlegal process, wherein a judge finds an appropriate punishment for the accused considering factual circumstances and equities. In light of the fact that the legislature provided discretion to the judges to give punishment, it becomes important to exercise the same in a principled manner. We need to appreciate that a strict fixed punishment approach in sentencing cannot be acceptable, as the judge needs to have sufficient discretion as well. it is a fundamental principle of natural justice that the adjudicators must provide reasons for reaching the decision and secondly, the reasons assume more importance as the liberty of the accused is subject to the aforesaid reasoning.
Further, the Appellate Court[footnoteRef:11] is better enabled to assess the correctness of the quantum of punishment challenged, if the trial court has justified the same with reasons. Any reasoning dependent on the moral and personal opinion/notion of a Judge about an offense needs to be avoided at all costs. [11: Accused X vs State of Maharashtra]
In Atkins v. Virginia, the U.S. Supreme Court prohibited the use of the death penalty for persons who had intellectual disabilities at the time of the offense.[footnoteRef:12] The Court recognized that sentencing individuals with intellectual disabilities to death fails to serve any of the three main rationales for punishment: [12: 536 U.S. 304 (2002)]
- rehabilitation (which is inapplicable to the death penalty),
- deterrence (such individuals have a diminished ability to process information, to learn from experience, to engage in logical reasoning, or to control impulses, and thus are likely unable to make the calculated judgments that are the premise for the deterrence rationale ), and
- retribution the diminished capacity of the intellectually disabled lessen moral culpability and hence the retributive value of the punishment ).[footnoteRef:13] [13: Hall v. Florida, 134 S. Ct. 1986 (2014)]
Sentencing in India is midway between judicial intuition and strict application of the rule of law. As much as we value the rule of law, the process of sentencing needs to preserve principled discretion for a judge. In India, sentencing is mostly led by guideline judgments in the death penalty context, while many other countries like the United Kingdom and the United States of America, provide a basic framework in sentencing guidelines.[footnoteRef:14] [14: REVIEW PETITION (CRIMINAL) NO. 301 OF 2008, Para 49 ]
On the dangers of sentencing discretion, Justice Krishna Iyer held that Guided missiles with lethal potential, in unguided hands, even judicial, is a grave risk where the peril is mortal though tempered by the appellate process. [footnoteRef:15] [15: Rajendra Prasad v. State of Uttar Pradesh (1979) 3 SCC 646]]
In any case, considering that a large part of the exercise of sentencing discretion is principled, a Judge in India needs to keep in mind broad purposes of punishment, which are deterrence, Â incapacitation, rehabilitation, Â retribution, and reparation (wherever applicable), unless particularly specified by the legislature as to the choice. The purposes identified above mark a shift in law from crime-oriented sentencing to a holistic approach wherein the crime, criminal, and victim have to be taken into consideration collectively. [footnoteRef:16] [16: Accused X vs the State of Maharashtra]
Legal Insanity and Mental Illness
Test for recognizing that an accused is eligible for such mitigating factor. It must be recognized that insanity is recognized under IPC and the mental illness Supreme Court Accused X vs the State of Maharashtra case considering the present case arises at a different stage and time.
Under IPC, Section 84 recognizes the plea of legal insanity as a defense against criminal prosecution.[footnoteRef:17] This defense is restricted in its application and is made relatable to the moment when the crime is committed. Therefore, Section 84 of IPC relates to the men’s rea at the time of the commission of the crime, whereas the plea of postÂconviction mental illness is based on the appreciation of punishment and the right to dignity.[footnoteRef:18] [17: Surendra Mishra v. State of Jharkhand, (2011) 3 SCC (Cri.) 232] [18: Amrit Bhushan  Gupta  v.  Union  of  India,  AIR  1977  SC  608]
The doctrine of rarest of the rare – Â It is necessary to consider the aspect of post-conviction mental illness as a mitigating factor in the analysis of Rarest of the rare doctrine which has come into force post-Bachan Singh Case [footnoteRef:19] [19: Bachan Singh V. State of Punjab, AIR 1980 SC 898]
The case of Piare Dusadh v. King Emperor[footnoteRef:20], has already recognized post conviction mental illness as a mitigating factor although no proper guideline regarding this was made. Usually, mitigating factors are associated with the criminal, and aggravating factors are relatable to the commission of the crime. These mitigating factors include considerations such as the accused s age, socioÂeconomic condition, etc. [20: AIR 1944 FC 1]
In the case of Accused X vs. State of Maharashtra SC held that the ground claimed by accused x is arising after a longÂtime gap after the crime and conviction. Therefore, the justification to include the same as a mitigating factor does not tie in with the equities of the case, rather the normative justification is founded in the Constitution as well as the jurisprudence of the rarest of the rare doctrine. It is now settled that the death penalty can only be imposed in the rarest of the rare case which requires a consideration of the totality of circumstances. Supreme Court concluded that we have to assess the inclusion of post conviction mental illness as a determining factor to disqualify as a rarest of the rare case.
Liberty and freedom for the accused
Sentencing generally involves curtailment of liberty and freedom for the accused. Under Article 21 of the Constitution, the right to life and liberty cannot be impaired unless taken by just laws. In the case of Accused X vs the State of Maharashtra Supreme Court has concerned with the death penalty, which inevitably affects the right to life, and is subjected to various substantive and procedural protections under our criminal justice system. An irreducible core of the right to life is dignity.[footnoteRef:21] Right to human dignity comes in different shades and colors. [footnoteRef:22] [21: Navtej  Singh Johar v. Union of India, AIR 2018 SC 4321] [22:  Common Cause v. Union of India, AIR 2018 SC 1665]
Mental illness has the right to live with dignity
The dignity of human beings inheres to a capacity for understanding, rational choice, and free will inherent in human nature, etc. The right to dignity of an accused does not dry out with the judges ink, rather, it subsists well beyond the prison gates and operates until his last breath.[footnoteRef:23] Section 20 (1) of the Mental Health Care Act, 2017, Act No. 10 of 2017, explicitly provides that every person with mental illness shall have a right to live with dignity. All human beings possess the capacities inherent in their nature even though, because of infancy, disability, or senility, they may not yet, not now, or no longer have the ability to exercise them. [23: Accused X vs State of Maharashtra]
When such a disability occurs, a person may not be in a position to understand the implications of his actions and the consequence it entails. In this situation, the execution of such a person would lower the majesty of the law.
Article 20, Constitution of India
Article 20 (1) of the Indian Constitution imbibes the idea of communication/knowledge for the accused about the crime and its punishment. It is this communicative element, which is ingrained in the sentence (death penalty), that gives meaning to the punishments in a criminal proceeding. The notion of the death penalty and the sufferance it brings along causes incapacitation and is idealized to invoke a sense of deterrence. If the accused is not able to understand the impact and purpose of his execution, because of his disability, then the raison dêtre for the execution itself collapses.
Article 20 of the Constitution guarantees individuals the right not to be subjected to excessive criminal penalties. The right flows from the basic tenet of proportionality. By protecting even those convicted of heinous crimes, this right reaffirms the duty to respect the dignity of all persons. Therefore, our Constitution embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency against which penal measures have to be evaluated. In recognizing these civilized standards, we may refer to the aspirations of India in being a signatory to the Convention on Rights of Persons with Disabilities, which endorses the prohibition of cruel, inhuman or degrading punishments with respect to disabled persons.
In England, there was a common law right barring the execution of death sentences for lunatic prisoners.[footnoteRef:24] [24: Hale’s Pleas of the Crown Vol. I Â p. 33; Coke’s Institutes, Vol. III, pg. 6; BlackÂstone’s Commentaries on the Laws of England Vol. IV, pages 18 and 19;, ‘An Introduction to Criminal Law’, by Rupert Cross, (1959), p. 67.]
International Consensus
There is a strong international consensus against the execution of individuals with mental illness.[footnoteRef:25] Convention on Rights of Persons with Disabilities and its Optional Protocol was adopted on the 13th of December 2006 at United Nations Headquarters in New York and came into force on the 3rd of May 2008. India has signed and ratified the said Convention on the 1st day of October 2007. [25: Commission on Human Rights Resolution 2000/65 The question of the death penalty, UN Commission on Human Rights (Apr. 27, 2000)]
Declaration on the Rights of Mentally Retarded Persons(1971) and the Declaration on the Rights Of The Disabled Persons(1975) are International Conventions related to the protection of the Human Rights of the mentally ill accused.
Another baseline of international law for the treatment of mentally ill prisoners, in general, can be found in the United Nations Standard Minimum Rules for the Treatment of Prisoners.[footnoteRef:26]These baseline rules were adopted sixty years ago by the First U.N. Congress on the Prevention of Crime and the Treatment of Prisoners, held in 1995, and were subsequently approved by the U.N. Economic and Social Council ( ECOSOC ) in 1957 and again, with revisions, in 1977. Of particular relevance is Standard 22(1), which recommends that every prison include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality. Standards 24 and 25 govern the examination, treatment, and rehabilitation of mentally impaired individuals. [26: Economic and Social Council Res. 663 C (XXIV) (July 31, 1957)]
In the case of Shatrughan Chauhan[footnoteRef:27] Supreme Court held that the directions of the United Nations international conventions, of which India is a party, clearly show that insanity/mental illness/schizophrenia is a crucial supervening circumstance, which should be considered by this Court in deciding whether in the facts and circumstances of the case death sentence could be commuted to life imprisonment. To put it clearly, insanity is a relevant supervening factor for consideration by this Court. [footnoteRef:28]
Prison Rules Consensus [27: Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1] [28: (2014) 3 SCC 1]
Various prison rules in India also recognize that generally, the Government has the duty to pass appropriate orders on execution if a person is found to be a lunatic.
- Andhra Pradesh Prison Rules, 1979[footnoteRef:29] [29: Rule 796]
- Gujarat Prisons (Lunatics) Rules, 1983
- Delhi Prison Rules, 2018[footnoteRef:30] [30: Rule 824]
- Tamil Nadu Prison Rules, 1983[footnoteRef:31] [31: Rule 923]
- Maharashtra Prison Manual, 1979[footnoteRef:32] [32: Chapter XLII (Government Notification, Home department, No.RJMÂ1058 (XLVI)/12,495ÂXVI, dated 18.01.1971)]
- Model Prison Manual by Ministry of Home Affairs (2016)[footnoteRef:33] [33: Rule 12.36]
Above are some of the examples of legal instruments in India which have already recognized post conviction mental illness as a relevant factor for Government to consider under its clemency jurisdiction.
Considering facts by Court when giving Death Sentence – In the case of the Accused X vs State of Maharashtra Supreme Court held that in any case, considering India has taken an obligation at an international forum to not punish mental patients with cruel and unusual punishments, it would be necessary for Court to provide for a test wherein only extreme cases of convicts being mentally ill are not executed. Moreover, Apex Court cautions against the utilization of this dicta as a ruse to escape the gallows by pleading such defense even if such aliment is not of grave severity.
- Grounds for Precluding Execution of Capital Punishment Mentally ill
- American Bar Association, by its Resolution[footnoteRef:34] notes as under  [34: 122A passed on August 2006]
- Grounds for Precluding Execution.
A sentence of death should not be carried out if the prisoner has a mental disorder or disability that significantly impairs his or her capacity
- to make a rational decision to forgo or terminate post conviction proceedings available to challenge the validity of the conviction or sentence;
- to understand or communicate pertinent information, or otherwise assist counsel, in relation to specific claims bearing on the validity of the conviction or sentence that cannot be fairly resolved without the prisoner’s participation; or
- to understand the nature and purpose of the punishment, or to appreciate the reason for its imposition in the prisoner’s own case.
Directions
Sentencing the mentally ill accused test of severity can be a guiding factor for recognizing those mental illnesses that qualify for an exemption.
Therefore, the test envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that a medical professional would objectively consider the illness to be most serious so that he cannot understand or comprehend the nature and purpose behind the imposition of such punishment. These disorders generally include schizophrenia, other serious psychotic disorders, and dissociative disorders with schizophrenia.
In the case of Accused X vs the State of Maharashtra, following directions need to be followed in future cases.
- That the postÂconviction severe mental illness will be a mitigating factor that the appellate Court, in appropriate cases, needs to consider while sentencing an accused to the death penalty.
- The assessment of such disability should be conducted by a multiÂdisciplinary team of qualified professionals (experienced medical practitioners, criminologists, etc), including professionals with expertise in the accuseds particular mental illness.
- The burden is on the accused to prove by a preponderance of clear evidence that he is suffering from severe mental illness. The accused has to demonstrate active, residual, or prodromal symptoms, that the severe mental disability was manifesting.
- The State may offer evidence to rebut such claim.
- A court in appropriate cases could set up a panel to submit an expert report.
- Test of severity envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that objectively the illness needs to be most serious that the accused cannot understand or comprehend the nature and purpose behind the imposition of such punishment.
Generally, it needs to be understood that prisoners tend to have an increased affinity to mental illness.
Moreover, due to legal constraints on the recognition of broad spectrum mental illness within the Criminal Justice System, prisons inevitably become home for a greater number of mentally ill prisoners of various degrees. There is no overlooking the fact that the realities within the prison walls may well compound and complicate these problems.[footnoteRef:35] [35: Liebling, Maruna, and McAra et al., The Oxford Handbook of Criminology (6th Ed. (2017))]
Conclusion
In the late eighteenth century, Sir Edward Coke, the great English jurist, said that by intendment of law the execution of the offender is for example . . . but so it is not when a mad man is executed, but should be a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be no example to others.[footnoteRef:36] In the 1980s, the U.N. Economic and Social Council adopted safeguards concerning the application of the death penalty.[footnoteRef:37] The earliest version of the Safeguards called for the prohibition of the execution of persons who have become insane, [36: Ford v. Wainwright] [37: Economic and Social Council Res. 1984/50, Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty (1984) (providing the first iteration)]
The standard that the Court prescribes is one of execution and misapplied within both the sentencing paradigm as well as within the punishment paradigm. At the post-conviction stage, the majesty of the law, as referred to by the Court, is not lowered because the prisoner may not understand the nature and purpose of punishment but because the onset of mental illness in prison is an additional cost the prisoner bears which is not accounted for in the punishment imposed by the law.
Today, all of humanity has no qualms in exempting the insane from the death penalty; such has been the case in this country for the thirty years that have passed since the decision in Ford v. Wainwright. Yet the prohibition on cruel and unusual punishment also should bar the sentence of death for those who are half-mad. Surely the court can fashion a remedy that recognizes that class of offender.
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