-Madhav Aggarwal
INTRODUCTION
The Supreme Court in its recent judgement in the case of Manoj v. State of MP laid down guidelines to be adhered to in cases pertaining to offences that can lead to a death sentence. It held that for sentencing, the jail authorities must produce a contemporaneous psychological and psychiatric report of the accused to reveal post-conviction mental illnesses if any. This becomes important as the medical condition of the convict has been held to be a supervening circumstance by the Supreme Court, holding that a person cannot be executed in such a situation. However, the position of the law on executing a person after treating them for their mental illness by postponing the execution remains ambiguous with nothing prohibiting such an order.
This article argues that it would be unconstitutional to postpone the execution of a person till he is mentally fit, as it would violate Art. 14and 21 of the Constitution. The article further argues that giving the death sentence in such a manner would also go against the ‘rarest of rare’ doctrine. Because of this, it is argued that a death sentence should always be commuted to that of life imprisonment for those suffering from a mental illness at the time of execution.
SHOULD DEATH SENTENCE BE EXECUTED POST-TREATMENT OF MENTAL ILLNESS?
Curing A Convict Of Mental Illness So That Death Sentence Can Be Visited Upon Him Violates Article 21 Of The Constitution.
Article 21 of the Constitution prohibits the deprivation of life or personal liberty, except according to the procedure established by law. The same, as per Maneka Gandhi v. Union of India, has to be a just, fair and reasonable procedure. Further, in Sunil Batra v. Delhi Administration, it was held that any deprivation that is cruel or outrageous would be violative of Art. 21. The case of Mithu v. State of Punjabalso emphasised the importance of a sentence not being cruel, holding that any kind of a savage sentence would be an anathema to the civilised jurisprudence of Art. 21.
In Shatrughan Chauhan v. Union of India, it was held that insanity/mental illness/schizophrenia are supervening circumstances to be considered while deciding whether a sentence of death is commuted. It was held that executing a mentally ill convict would be violative of Art. 21. Further, in Accused X v. State of Maharashtra, it was held that when the convict is mentally ill so as to render him incapable of comprehending the nature and purpose of the death sentence, it should not be imposed. The US Supreme Court as well, in the case of Ford v Wainwright, held that executing the insane would be savage and inhumane. Executing those unaware of the nature and purpose of punishment being imposed on them was held to be violative of the Eighth Amendment, which has now been incorporated into Art. 21.
Statistically, mental illness in death row convicts is often caused due to the excessive trauma and suffering induced by being in the fear of imminent death. Being on death row, with long periods of uncertainty about life, causes extreme mental anguish and severe psychological strain, with the period of imprisonment being degrading and dehumanising. This was noted in a report by Project 39A that analysed empirical data about the psychological consequences of living on death row. Being on death row, in anticipation of death at a specific time, is extremely stressful and can cause psychological as well as psychiatric problems. This suffering has also been recognised by the Supreme Court in cases such as Shatrughan Chauhan, Vatheeswaran etc.
When there is ample evidence to suggest that being on death row causes mental stress of such levels which can result in mental illnesses, the chances of curing that mental illness while continuing to keep the person on death row are negligible. In fact, this would act as a counter to the treatment he is receiving. Treating a patient with mental illnesses also raises ethical concerns for psychiatrists who now have to work with the knowledge that their treatment will result in the death of the patient. This, in addition to the knowledge of the convict that he is being treated only to enable his execution, makes such treatment very unlikely to succeed. More importantly, it makes the treatment, and this extended stay on death row (with no certainty of how long the same would continue) extremely torturous, inhumane and barbaric in nature. This goes wholly against the ethos of Article 21 of the Constitution.
Such a procedure before the convict’s execution, it is argued, besmirches the whole process in a manner that carrying out the sentence of death would no longer be justified. Making the convict undergo immense mental trauma and punishment, over what had been given to him by the court, taints the very heart of this punishment. With harsher punishment, there comes a requirement of higher righteousness as the basis of that punishment. Death sentence being the harshest form of punishment would require the highest form of righteousness on part of the state. The kind of suffering every death row convict faces, in addition to the further state torture in the garb of curing a convict’s mental illness with the sole goal to make him executable leads to a loss in the moral position and righteousness of the state action in a manner that makes the sentence inexecutable. In such a situation, an order to cure the convict of his mental illness merely to be able to execute him would be violative of Article 21 of the Constitution.
Curing A Convict Of Mental Illness So That The Sentence Of Death Can Be Visited Upon Him Violates Article 14 Of The Constitution.
As per cases such as Inspector Ravina, and Navtej Johar, the principle of disparate impact by a law that is neutral on the face of it resulting in violation of Article 14 has been firmly established. The failure to create proper classification, resulting in the creation of a disparate impact on some groups would be violative of Article 14 of the Constitution.
An order to postpone the execution of a mentally ill convict to such a date when he can be mentally fit for being executed results in added imprisonment on death row for such convicts. This increases the mental as well as physical suffering of the accused, which would not have to be undertaken by people executed without having to wait for this extended period. Such an order makes the convict undergo an additional amount of misery for an uncertain duration. As already argued, it is well established that people with mental illnesses deserve additional safeguards, with courts saying that a mentally ill person cannot be executed. Thus, there is a disparate impact being caused on a group that needs to be protected. Curing a convict of his mental illness merely to be able to execute him would be violative of Article 14 and thus, a death sentence must be commuted when a convict is found to be suffering from mental illness at the time of execution.
Execution After Waiting For Mental Illness To Be Cured Does Not Meet The Rarest Of Rare Standard.
Bachan Singh v. Union of India laid down the rarest of rare doctrine that is used in death penalty adjudication in India. It was held that the sentence of death ought not to be imposed “save in the rarest of rare cases when the alternative option is unquestionably foreclosed”. Santosh Kumar Shantibhushan Bariyar v. State of Maharashtra interpreted this doctrine to have a two-step test. To give a sentence of death, first, the case must fall into the rarest of rare category and second, the alternative of life imprisonment should be unquestionably foreclosed.
Executing a convict after curing him of his mental illnesses fails to take proper account of the second step of the above test. The increased, uncertain period of incarceration for the convict while he is being treated for mental illness, shows that the alternative of life imprisonment is not unquestionably foreclosed. It also fails to take into account any other facts that may come to light during the extended incarceration to show the scope of reformation for the convict. Thus, a death sentence cannot be carried out in such a manner.
Thus, due to the above-mentioned reasons, executing a convict after curing him of his mental illness would be unconstitutional and fail to meet the rarest of rare standard. Thus, the sentence should be commuted to that of life imprisonment when a convict is found to be suffering from mental illness at the time of execution.
CONCLUSION
This article looked into the question of whether a person should be cured of their mental illness such that the sentence of death can be visited upon him. It argued against such an order. It argued that instead, the death sentence of a person suffering from a mental illness should automatically be commuted to a sentence of life imprisonment. This is argued as execution after curing mental illness would violate Art. 21 and Art. 14 of the Constitution. It was argued that curing someone of their mental illness with the sole aim of making them executable is cruel, inhumane and torturous. This also results in the person having to spend an extended duration of imprisonment on death row, which in itself causes several mental illnesses. Further, this increases the suffering of mentally ill convicts being cured of their illness only to be executed, as compared to people who do not have to undergo such additional incarceration. Further, the alternative of life imprisonment in such a situation cannot be said to be unquestionably foreclosed. In such a scenario, it was argued, carrying out the sentence of death would be unconstitutional and unjustified, making the sentence of death inexecutable. Thus, the sentence should be commuted in this situation and no person should be made to undergo treatment for a mental illness merely to be executed once they become mentally fit.
[The author is a 3rd Year Student at National Law School of India University, Bengaluru.]
