Last month, Deathworthy: A Mental Health Perspective of the Death Penalty , an important report by Project 39A, based at the National Law University, Delhi, was published. It explores the mental health concerns of death row prisoners, the intellectual disabilities they have, and the psychological impact of being on death row.
India remains among the 55 retentionist countries where the death penalty is still handed down for certain crimes. Data on how many death row prisoners have mental health conditions and/or intellectual disabilities are hard to come by (because the prisoners are not specifically assessed for it) and so this report helps to improve our understanding of this much-neglected topic.
No right to fair trial
The report presents the detailed histories of 88 death row prisoners in India. Of them, 30 were found with a depressive illness, 19 with anxiety disorder, and three prisoners reported having psychotic episodes. Of particular concern is the fact that eight had attempted suicide and close to 50% said they had considered it. Worryingly, nearly 11% of these death row prisoners were diagnosed with intellectual disabilities and most of them had deficits in intellectual functioning.
The United Nations Commission on Human Rights calls upon countries “not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person”. Yet, the laws of most countries don’t explicitly prohibit this. Mental illness and intellectual disabilities complicate the death penalty. Persons with mental illness and intellectual disabilities may not be able to instruct their lawyers to mount a robust defence, thus jeopardising the right to a fair trial enshrined in our Constitution. The ‘insanity defence’ in the Indian Penal Code sets such a high barrier that it can’t be met in most cases. Even when there is an obvious history of mental illness, courts in India are usually unwilling to consider the plea of insanity by defence lawyers. In State of Maharashtra v. Santosh Maruti Mane (2014), the Bombay High Court, while confirming the death penalty for a man who had gone on a bus rampage that claimed nine lives, and rejecting his insanity plea, had stated, “Mere prior incidence of treatment is not sufficient. It has to be established that at the time of commission of an offence, the accused was of unsound mind and incapable of understanding the consequences of his action”. It is impossible for any psychiatrist, days or weeks after the offence was committed, to certify that the above conditions existed at the precise moment the offence was committed. In Shatrughan Chauhan v. Union of India (2014), the Supreme Court had said that mental illness should warrant the commutation of death sentence to life imprisonment. Despite this, courts do not consider mental illness as a mitigating factor when imposing punishment.
The report also highlights another important and neglected aspect of mental illness: the social determinants of mental illness. Mental illness is more common among the poor and those with mental illness are more likely to end up in poverty. Those who have experienced childhood abuse are significantly more likely to experience mental illness in adulthood than those who did not. The report provides an insight into the poverty, abuse, neglect and violence that mark the overwhelming majority of death row prisoners with mental illness. It sheds light on the stigma, social ostracisation and grief of families of those sentenced to death.
Adopting a psycho-social approach
The authors argue that courts should take a psycho-social approach towards sentence mitigation using the framework recommended by the Supreme Court in Bachan Singh v. State of Punjab (1980). The apex court had laid down guidelines that courts should take into consideration before imposing the death penalty. These include mental health issues such as “extreme mental or emotional disturbance” at the time of the incident and acting under “duress”. A psycho-social approach will allow courts to take into account the life history of an individual and relate this to the mental state of the individual.
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The report says, “We have sentenced to death people, who, due to the nature of their disability, might very well be exempt from the death penalty altogether.” Society, especially those in the criminal justice system, including legal and medical professionals, should mull over this. Mental illness is not a crime. Those with mental illness are vulnerable to violation of their rights. We need to ask ourselves what purpose is served by executing people who have a mental illness or an intellectual disability. This report, one hopes, will trigger these discussions.
Soumitra Pathare is a Consultant Psychiatrist and Director of the Centre for Mental Health Law and Policy at the Indian Law Society