Last week, the Supreme Court, while commuting capital punishment of two persons to a 30-year jail term, made an important observation that the court is duty-bound to prompt all pertinent information concerning the plausibility of the reformation of the convicts before imposing the harshest punishment of death sentence, even if the accused has remained silent.
Also, the court noted that the duty lies on the State to procure evidence to establish that there is no possibility of rehabilitation and reformation of the accused.
Against this backdrop, there is a need to revisit the 'Deathworthy report' released by the National Law University, Delhi’s Project 39A, under the guidance of mental health professional from NIMHANS, Bengaluru.
Over 60% of the prisoners on death row interviewed for the study were found to be enduring mental illness, and the longer they spent in anticipation of their possible execution, the worse their mental health became.
Adverse Childhood Experiences and Mental Toll
The study raises important questions about the treatment inflicted on the prisoners on death row: denial of food and repeated sexual and physical torture.
The report notes the cognitive impairment, marginalisation, and abuse that most convicts agonised before the alleged crimes, much of which courts did not ponder.
Most of the prisoners interviewed for the report had experienced traumatic life experiences and horrific childhood abuse. Many prisoners on the death row come from disturbed family backgrounds.
Around 47% had reported that they had seen the sudden death of a friend or a close relative, 65% experienced physical assault, and 27% experienced unwanted sexual experience.
Almost 13% had witnessed a violent and sudden death in early life.
51 Death Row Prisoners Had at Least One Mental Disorder, 63 were Experiencing Suicidal Thoughts
The authors of the ‘Deathworthy Report’ noted that:
“There is persistent and often intergenerational social and structural exclusion, deprivation, and violence that an overwhelming majority of the prisoners interviewed found themselves in since childhood.”
In addition, the heavy toll on the mental health of the prisoners on death row was the primary focus of the 'Deathworthy' report. The researchers quantified the pervasiveness of mental illness among 82 death row prisoners.
As many as 51 prisoners had at least one mental disorder, with anxiety, depression, and substance abuse being the predominant ones. Sixty-three death row prisoners were experiencing suicidal thoughts.
In Shatrughan Chauhan v. Union of India (2014), the Supreme Court noted that mental illness should warrant the commutation of death sentence to life imprisonment.
However, the courts do not consider mental illness as an extenuating factor while imposing the punishment. In the landmark case of Bachan Singh v. the State of Punjab (1980), the court laid down several guidelines that the court must consider before imposing the death penalty.
The considerations include mental health issues such as “extreme emotional or mental disturbance” at the time of the incident.
Consideration of the Probability of Reformation
A significantly high number of cases involved sentencing on the same day that of a conviction. There was no adequate duration between the sentencing and conviction hearing, which had an adverse impact on the trial court’s consideration of mitigating circumstances of the accused.
With no or little arguments on sentencing being presented by defence lawyers, trial courts had imposed death sentences in 49% of cases only based on the circumstances of the crime.
For instance, in State of Madhya Pradesh v. Charanlal (2001), the court abruptly dismissed all mitigating circumstances when it posed the following questions:
“Can such a person gain sympathy and mercy from society? Can any mitigating circumstances constitute a reason for such a beastly act? Should the court allow such a person to live a grand life after serving the punishment?”
Mitigating circumstances have no bearing on the guilt and are no justification for crime. However, they are meant to understand the circumstances and life history of the accused to assess their culpability.
In complete disregard of the fact that life imprisonment is considered the normal punishment in law, trial courts did not even consider the appropriateness of life imprisonment in 73.4% of the cases, as per the report released by Project 39A.
Similarly, the likelihood of reformation of the accused was canned based on the circumstances of the case. The reformation was hardly considered a mitigating factor, and even in the small number of cases (62 of 215) where it was considered, it was dismissed based on the crime in 40 (of 62) cases.
Conditions/Isolation Tantamount to Torture
According to the 2016 report released by the Death Penalty Centre at National Law University, Delhi, some prisoners were very hopeful, while others said that they “would prefer being executed than live a life with the plausibility of an execution impending large.”
Like other subjects interviewed for the report, the man identified as Jayakanthan “blinked continuously for the first few minutes” as he was kept in a cell with no source of sunlight for all but 20 minutes a day”.
“He felt that the noises made by the lizards were to thank him for feeding them,” the report said. He also told the researchers that the lizards kept visiting his cell, not for food but to “make noises as though talking to him as their friend.”
Other subjects/prisoners also stated that mosquitoes plagued them during the long captivity or that they would be kept awake by a light bulb in their cell, which would burn the whole night.
The study stated that there was a complete disengagement between prisoners on death row and defence lawyers. It submitted that lawyers were not disposed to do more due to the “meagre fees” that defendants’ families could afford.
According to the 2016 report, the prisoners claimed that pro bono/legal aid lawyers, at both the trial court and appellate court levels, had tried to extort money from the families of prisoners on death row, threatening not to turn up for hearings unless they were paid.
Without any access to information about the status of appeals and their cases, prisoners, in an interview for the report, said that they “spend most of their time continuously wondering if the end has come, every time the huge iron doors of the barracks are pushed open”.
Law Commission on the Death Penalty in India
In 2016, the Law Commission of India, in its 262nd report, finally submitted that the death penalty needs to be abolished except in terrorism-related offences.
The Law Commission of India felt that the country’s economic, social, and cultural contexts had drastically changed since the 35th report in 1967 when it recommended the retention of the death penalty in India.
Even during the debates of the Constituent Assembly Debates, Dr BR Ambedkar was personally in favour of the abolition of the death penalty. After Independence, India retained many laws put in place by the colonial government.
The Code of Criminal Procedure was re-enacted in 1973. Many notable changes were made, including Section 354(3), which now required recording reasons whenever the death penalty is imposed in cases.
The Law Commission, in the conclusion of its report, stated that there exists no empirical evidence that can suggest that the death penalty has a deterrent effect over and above life imprisonment.
The commission also cited the United Nations (UN), which has unswervingly held that no conclusive evidence exists between death penalty and deterrence.
The time has come for the death penalty to be abolished for all crimes, with the release of the 'Deathworthy' report of NLU Delhi, taking into account the harrowing conditions of the death row prisoners.
The latest Supreme Court judgment should mark the beginning of it instead of just putting the off-cuff remarks.
(Kshitij Goyal is a BA, LLB (Hons) student at National Law School of India University, Bengaluru. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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