Post-conviction Mental Illness is a mitigating factor for commutation of death penalty, Supreme Court

Post-conviction Mental Illness is a mitigating factor for commutation of death penalty, Supreme Court

Shruti Mahajan

The Supreme Court has held that post-conviction mental illness will be a mitigating factor while considering a plea for commutation of death penalty.

The judgment was rendered by a Bench of Justices NV Ramana, Mohan M Shantanagoudar, and Indira Banerjee in a review petition filed by a convict who had been sentenced to death for rape and murder of two underage girls.

The trial court had sentenced him to the death in 2001. This decision was confirmed by the High Court and was later challenged before the Supreme Court which dismissed the appeal. A review petition was filed against the same in which the Court commuted the death sentence to life imprisonment on the ground of his mental illness.


During the hearing of the review petition, two issues were raised by the Counsel for the accused. Advocate Nitya Ramakrishnan argued that the accused was not given a separate pre-sentencing hearing by the trial court as is provided for in the Code of Criminal Procedure (CrPC). The second issue raised pertained to the post-conviction mental illness of the accused. It was argued that the execution of persons suffering from mental illness or insanity violates Article 21 of the Indian Constitution. Hence, this was a fit case that warranted commutation of the death sentence to life imprisonment.

Counsel for the State of Maharashtra, Nishant Katneshwarkar, argued that the trial court proceedings would not stand vitiated merely on the ground that the pre-sentence hearing was not conducted on a separate day. As regards the mental illness of the accused, the State refuted the claim and submitted certain medical reports to substantiate its stand that the accused was not suffering from any mental illness.


On the issue concerning pre-sentence hearing, the Court was of the view that a hearing on a separate date is not mandatory as long as the accused is provided adequate time to present his case, bring material on record, and the spirit of the provisions of the CrPC is upheld.

The Court then proceeded to consider the aspect of sentencing and the impact of post-conviction mental illness on sentencing.

At the outset, the Court noted the position in India as regards sentencing which is something midway between judicial intuition and strict application of 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, the Court noted.

The Court elucidated the general aspects of sentencing as evolved from various judgments. It then proceeded 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 after the Bachan Singh case.

Usually, mitigating factors are associated with the criminal and aggravating factors are relatable to the commission of the crime. However, the ground of post-conviction mental illness arises a long time after the crime and conviction. Hence, 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.

Thus, the Court resorted to Articles 20 and 21 of the Constitution and Section 20(1) of the Mental Health Act and the Prison Rules of various States to hold that post-conviction mental illness is a mitigating factor in a death penalty case.

It then considered the test for recognizing an accused eligible for such mitigating factor. Placing reliance on  ‘International Classification of Diseases (ICD)’, which is accepted under Section 3 of the Mental Health Care Act, 2017 and Diagnostic and Statistical Manual of Mental Disorders (DSM), it held that there can be no set disorders/disabilities for evaluating ‘severe mental illness’.  However, a ‘test of severity’ can be a guiding factor for recognizing those mental illnesses which qualify for an exemption.

The Court laid down the following directions to be followed in future cases:

  • That the post­conviction severe mental illness will be a mitigating factor that the appellate Court, in appropriate cases, needs to consider while sentencing an accused to death penalty.
  • The assessment of such disability should be conducted by a multi­disciplinary team of qualified professionals (experienced medical practitioners, criminologists etc), including professional with expertise in accused’s particular mental illness.
  • The burden is on the accused to prove by a preponderance of clear evidence that he is suffering with 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.
  • Court in appropriate cases could setup a panel to submit an expert report.
  • ‘Test of severity’ envisaged 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.

In the instant case, however, the Court noted that while the exact mental illness which the appellant was suffering from was not clear, it was evident that he had been reeling under bouts of some form of mental irritability since 1994.  Moreover, the Court also took into account the fact that he had suffered long incarceration as a death row convict

However, highlighting the barbaric nature of the offence committed, the Court ruled out commuting the term to a life-sentence simpliciter but commuted the death penalty of the accused to a life sentence for the remainder of his life.

“It is extremely clear that the Petitioner poses such a grave threat to society that he cannot be allowed to roam free at any point whatsoever. In this view of the matter, we deem it fit to direct that the Petitioner shall remain in prison for the remainder of his life”

The Court thus allowed the appeal. It also directed the State Government to consider the case of the accused under the appropriate provisions of the Mental Healthcare Act, 2017 and if found entitled, provide for his rights under that enactment.

Read the judgment below.

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