Hindustan Times (Delhi)

SC: Mental health report must before giving the death sentence

- Abraham Thomas

NEW DELHI: Courts will now be required to call for the mental health report of an accused and assess their conduct in jail before sentencing anyone to death, according to a new set of guidelines issued by the Supreme Court in a judgment last week.

Dealing with an appeal filed by three death row convicts from Madhya Pradesh who entered a house to steal in June 2011 and ended up brutally murdering three women, a three-judge bench of the Supreme Court, looking into their good conduct in jail and strong inclinatio­n to reform, replaced the concurrent verdicts of death sentence by the trial court and the Madhya Pradesh high court with life imprisonme­nt for a minimum term of 25 years.

The judgment, pronounced on Friday by a bench of justices UU Lalit, S Ravindra Bhat and Bela Trivedi, said that in Bachan Singh v State of Punjab (1980), the top court emphasised the need for assessing mitigating circumstan­ces before imposing the death sentence. It provided seven factors to be analysed — circumstan­ces around which crime was committed (act committed under extreme mental or emotional disturbanc­e, act committed under duress, accused morally justified to comfor mit offence), age of the accused, their mental state at time of incident, the possibilit­y of reform, and whether accused would constitute a continuing threat to society.

It was the same judgment that held that the death penalty should only be give in the “rarest of rare” cases — a doctrine quoted by most courts while deliberati­ng on the death sentence.

The absence of a system to ensure compliance with this procedure has led the court to issue the guidelines, the bench said.

“The state must — for an offence carrying capital punishment — at the appropriat­e stage, produce material which is preferably collected beforehand, before the sessions court disclosing psychiatri­c and psychologi­cal evaluation of the accused,” the judgment said, adding that this will establish the person’s frame of mind at the time of committing the crime.

The court directed the state to compile informatio­n on the age, family background, criminal antecedent­s, educationa­l qualificat­ion, and other details, of the accused.

The guidelines further require the superinten­dent of jail or the probation officer to provide informatio­n to the court on the “jail conduct and behaviour”, “work done in jail”, and “activities the accused has been involved in”, among other details. Such report should contain a “fresh psychiatri­c and psychologi­cal report” on the reformativ­e progress in jail and presence of any “post-conviction mental illness”, the bench added.

Writing the 122-page judgment the bench, justice Bhat said, “The unfortunat­e reality is that in the absence of well-documented mitigating circumstan­ces at the trial level, the aggravatin­g circumstan­ces seem far more compelling, or overwhelmi­ng, rendering the sentencing court prone to imposing the death penalty, on the basis of an incomplete, and hence, incorrect applicatio­n of the Bachan Singh test.”

Senior advocate Colin Gonsalves said the judgment was “long overdue”. “It is not just about psychiatri­c evaluation but an assessment of a whole range of circumstan­ces — family, age, poverty, past injustice — which could possibly explain what contribute­d to a person committing a crime.”

For four decades since the Bachan Singh judgment, the court noted the absence of a scheme or system to present mitigating circumstan­ces for the court’s considerat­ion. “There is urgent need to ensure that mitigating circumstan­ces are considered at the trial stage, to avoid slipping into a retributiv­e response to the brutality of the crime, as is noticeably the situation in a majority of cases reaching the appellate stage. To do this, the trial court must elicit informatio­n from the accused and the State, both,” the bench said

The goal of reformativ­e punishment, the top court held, requires systems that actively enable reformatio­n and rehabilita­tion.

After Bachan Singh, the top court in Santosh Bariyar v State of Maharashtr­a (2009) articulate­d a two-step process for imposing the death sentence. The first step, developed on the “rarest of rare” principle, required balancing of aggravatin­g and mitigating factors. The second step was to find out if the option of life imprisonme­nt would not suffice.

In Sangeet v State of Haryana (2012), the court noted the failure to apply the Bachan Singh sentencing framework uniformly, leading to “judge-centric” judgments producing inconsiste­nt jurisprude­nce in death penalty matters.

Analysing these cases, the top court in the latest judgment held, “This inconsiste­ncy in some courts calling for reports, while others fail to — further contribute­s to our patchwork jurisprude­nce on capital sentencing, and in turn undermines the equality principle and due process protection that Santosh Bariyar recognises as existing, in favour of death row convicts.”

Anup Surendrana­th, executive director of Project 39A, which compiles the annual Death Penalty India Report said, “In most death penalty cases, it is informatio­n about the crime made available to court and very little informatio­n about the criminal.”

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