Mental health and the death penalty in India – Introduction

Hi, everyone. My name is Maitreyi Misra, and I head the work on mental health and criminal justice at Project 39A, a criminal justice program at the National Law University, Delhi. In this video today, we will be discussing the law on mental health in the context of the death penalty in India. In death penalty cases, the mental health of the accused becomes important at three stages, first at the time of sentencing. Second at the appellate stages, also known as the post-conviction stage. And third when and if the accused challenges the rejection of the mercy petition on grounds of violation of the right to life under Article 21 of the Constitution.

At the time of sentencing and with respect to mental health, the Supreme Court has acknowledged mental or emotional disturbance at the time of offense as a factor that may mitigate the death sentence. The court has also held mental defect as a mitigating factor if such defect impairs the accused’s capacity to appreciate the criminality of the conduct. Mental defect is what is now referred to as intellectual disability. In a few cases, the Supreme Court has also commuted the death sentence on the basis of mental illness, even though the accused was not successful under the insanity defense. The court has therefore undertaken both a diagnostic approach to mental health, as well as a psychosocial approach.

A diagnostic approach or a symptom diagnosis approach focuses on symptoms of an illness and corresponds them to different clinical diagnoses. Whereas a psychosocial approach considers the life history of an individual as a set of constantly interacting variables and considers the impact on the emotional and mental makeup of the individual. Moving on to the next stage i.e. the post-conviction stage. In 2019, the Supreme Court held post-conviction severe mental illness to be a mitigating factor. The court put in place a test of severity as a guiding factor to determine which mental illness may qualify for an exemption.

The court held that mental illness should be such that the accused cannot understand or comprehend the nature and purpose behind the imposition of the punishment. The court further held that the burden is on the accused to prove by a preponderance of evidence that they have a severe mental illness, and it went on to hold that the assessment of the disability in such cases should be conducted by a multidisciplinary team of qualified professionals. Now coming to the last stage, this is the stage where the accused can challenge the rejection of their mercy petition on grounds of violation of the right to life under Article 21 of the Indian Constitution.

Two of these grounds, which are also known as supervening grounds, pertain to the mental health of the accused and these are (a) delay and (b) mental illness or insanity. The central claim for delay as a ground for commutation is the mental and emotional agony caused to the prisoner as a result of the undue, inordinate and unexplained delay by the Executive in deciding the mercy petition. In delay claims, courts have focused on the adverse impact on the mental and psychological health of the prisoner of living with the uncertainty of death. Such delay is presumed to constitute torture and the burden to prove so, is not on the prisoner. The other ground at this stage is mental illness or insanity.

In 2014, the Supreme Court held that insanity is a supervening circumstance that warrants commutation of the death sentence. In doing so, the court relied on English common laws, prohibition on execution of lunatics and mad people, as well as the prohibition under international law against imposing the death sentence on persons with mental disabilities. Thank you for watching this video. And in the next video, we will discuss the multiple barriers that lawyers often face when ensuring the fair trial rights unique to the death penalty for accused persons with mental disabilities. Thank you.