Mental Illness, Sentencing and the Death Penalty
On 12 April 2019, the Supreme Court commuted the death sentence of accused X  who was on death row for 17 years, to life imprisonment till the end of his natural life without remission, on grounds of his post-conviction mental illness. The central question that the Court sought to answer focused on the “assessment of culpability for sentencing to death those with mental illness.” Though the Court reaches the right conclusion in commuting the sentence, the Court fallaciously characterises “post-conviction” mental illness as a “mitigating” factor, rather than a commuting factor. Even in its consideration of mental illness as a mitigating factor, the Court introduces a “test of severity,” which, rightly or wrongly, is generally applicable at the stage of execution of the death sentence, rather than when the Court is imposing or reassessing the sentence.
This article argues that the Court’s introduction of a threshold, formulated as a “test of severity,” is contrary to the role of mitigating factors, and is incompatible with their scope and concept. As envisaged in the foundational Bachan Singh framework, mitigating factors are meant to contextualise the accused and to aid the court in assessing their culpability. They cannot be restricted by qualifying standards.
Additionally, the article makes an argument against the Court’s characterisation of “post-conviction” mental illness as a “mitigating” factor. While mental illness at or before the time of offence is a mitigating factor, post incarceration/conviction onset of a mental illness should be considered a commuting factor in an inquiry additional to the sentencing exercise. This argument is based on the understanding that while legal punishment assumes certain deprivations, any deprivation or additional burden beyond what the punishment warrants would qualify as a violation, in particular the violation of the right to life, and should, therefore, result in a commutation.
Though the Court intends to consider mental illness within the death penalty sentencing framework, meant to determine whether the accused is culpable enough to get this maximum punishment, it wrongly applies a standard that is generally meant for the execution stage. In so doing the Court introduces severity as a qualifying criteria for the appreciation of mental illness as a sentencing factor. Setting a testing standard, however, ignores the fact that every aspect of an individual’s life history, regardless of its gravity and intensity, has a bearing on their culpability and should enter the sentencing matrix. Introducing thresholds dilutes sentencing because it is necessarily and inherently exclusionary.
The constitution bench of the Supreme Court in Bachan Singh v State of Punjab  set forth an individualised sentencing framework to be applied by courts in capital cases. The framework essentially requires sentencing courts to determine the culpability of the accused in light of the harm caused. Aggravating and mitigating factors relating to both the accused and the crime provide relevant and sufficient information to the courts to discharge this burden.
Aggravating circumstances, such as the nature of crime, number of victims, and the manner of commission of crime, provide the information on the aspect of harm caused by the offence. The culpability of the accused, on the other hand, is determined by appreciating mitigating circumstances. These factors are meant to provide an insight into an individual’s historical, social, cultural, emotional, biological, and psychological context. They provide a cohesive narrative of a person which is dynamic and not restricted to fixed distinctive events. In listing mitigating factors, Bachan Singh does make a reference to the mental health of the accused but paints it as a (violently) reactive state of mind, confining it to the time when the offence was committed. However, causally linking mental health and the offence fails to acknowledge that changes in the mental and emotional state of the accused are an outcome of a much larger context and an accumulation of life events and experiences.
Mental health itself can be understood as a sliding scale which varies with the inherent variables of a social environment. Rather than being a static phenomenon, it is affected by and dependant on the constantly changing social and internal environment of the person. On the other more extreme end of this scale lies mental illness, which is a distortion of an individual’s thought, mood, perception, orientation or memory such that it impairs judgment, behaviour and ability to meet the ordinary demands of life.
Given that mental health and mental illness are overarching subjective experiences which constantly interact with the multiple and constant moving parts of an individual’s life, restricting their consideration to a particular event, type or severity goes against the very nature of mental health. It also runs contrary to the “liberal and expansive construction”  that is to be accorded to mitigating factors.
In X’s case, however, the Court introduces the test of severity for consideration of mental illness as a mitigating factor. It states 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 making contingent the appreciation of mental illness on its severity, the Court conflates an inquiry that ought to be governed by the death penalty sentencing framework with an inquiry that is meant for the execution stage. These are two entirely separate inquiries serving two very different purposes in a capital case. While one is geared towards determining the proportionate sentence, the second focuses on examining whether the execution of that sentence serves its intended penological purpose. This is why the inquiry into the “nature and purpose of punishment” cannot be transposed into a sentencing regime like the Court attempts to do in this case.
In conflating the two, the Court formulates a threshold in the form of the test of severity contrary to the envisaged “scope and concept”  of mitigating factors in Bachan Singh. Regardless of the validity of the “test of severity” in and of itself, the reference to a standard that is applicable at the execution stage is a testament to the Supreme Court’s deficient understanding of mitigating factors and death penalty sentencing.
After committing this fundamental error, the Court continues to stumble across the death penalty terrain in its analysis of mental illness as a post-conviction mitigating factor. The following section examines the tenability of considering, as a mitigating factor, mental illness the onset of which is post-incarceration. It also offers a skeletal structure for an alternative inquiry for assessing the relationship between post-incarceration mental illness and punishment.
Post-conviction Mental Illness
An inquiry on mental illness at the post-conviction stage, as was done in this case, largely hinges upon the time of onset of the illness. The treatment of mental illness the onset of which is post-incarceration ought to be different from the consideration of mental illness which the individual had before or at the time of the offence. The latter is an answer towards the question of culpability while the former does not have a bearing on culpability but is rooted in a rights violation.
When determining the culpability of the accused mitigating factors that are to be taken into consideration are those which exist prior to or at the time of commission of the offence. Mitigating factors not considered at the first instance of sentencing can be examined in a “post-conviction” stage (which refers to any stage of the judicial inquiry after the trial court’s decision) if and only if they arose before the sentencing hearing at trial court. For instance, if young age at the time of offence was not raised as a mitigating factor in the trial court, the appellate courts can consider it as a factor when reassessing sentencing.
Similarly, for mental illness to be considered as a mitigating factor at the post-conviction stage, the onset of the illness should have been before or at the time of offence. Where the onset of the mental illness is post the offence, it would be erroneous to refer to it as a “mitigating factor.” The post-fact onset of the illness would preclude it from being considered within the realm of the sentencing framework, as it would have no bearing on the culpability of the accused. “Post-conviction” “mitigating factor” is, therefore, an oxymoron of sorts.
This is not to say that post-conviction mental illness has no role to play in a capital case. Where the onset of mental illness (not identification) is post-conviction or even post the incarceration of the accused, the grounds for its consideration vary. A post-incarceration, post-conviction mental illness inquiry would be in addition to the sentencing inquiry.
This additional inquiry is broadly based on the idea that while legal punishment assumes certain deprivations, not least the restriction of liberty rights, any deprivation or additional burden beyond what the punishment warrants and assumes would qualify as a violation. These burdens in addition to and together with those legally imposed by the punishment, qualify as, what might be referred to as “punishment plus.”
Post-incarceration or post-conviction onset of mental illness is “punishment plus” because it is an additional burden unwarranted by the death sentence and constitutes a fundamental rights violation, in particular the right to life. The additional burden, that is, the onset of the illness, is borne by the individual while they are in prison in the custody and protection of the state. It is in breach of the state’s responsibility of ensuring the mental well-being of its prisoners. To be clear, it is the fact of mental illness, rather than its severity, that would trigger the post-incarceration and post-conviction re-evaluation of punishment, resulting in a commutation. The severity of the mental illness would be a reason for commutation when the individual’s pre-existing mental illness is exacerbated in prison.
This is the crucial difference in the consideration of mental illness of an individual as part of the sentencing inquiry. A pre-incarceration mental illness where the prisoner is not in the state’s custody would be a mitigating factor to be considered in deciding the question of sentence and may or may not result in the non-imposition of the death sentence. A post-incarceration mental illness, on the other hand, is a commuting factor that rests on the fulcrum of a rights violation as an additional burden imposed by the punishment.
With regards to this case, the Court considers the onset of X’s mental illness to be in prison and post-conviction. However, this inference of the Court is suspect, if not entirely wrong. The prison health record that the Court relies upon explicitly states that X had been under psychiatric treatment since 1994—six years before the offence. It was not a case of post-conviction mental illness, but a mental illness which had been existing at the time of offence, and should have, therefore, been taken into account as a mitigating factor within the sentencing regime, and not as a post-conviction consideration.
Even if one disregards this factual inaccuracy and considers the onset of X’s mental illness to be post-conviction, the Court’s reasoning for commutation should have found its basis in deprivations and burdens over and beyond those assumed by the punishment, rather than sentencing. What makes post-conviction onset of mental illness a factor for commutation is not that the person is no more culpable but that the mental illness in prison in addition to punishment is “punishment plus.”
The standard that the Court prescribes is one of execution and misapplied within both the sentencing paradigm as well as within the punishment paradigm. At the post-conviction stage, the “majesty of the law,” as referred to by the Court, is not lowered because the prisoner may not understand the nature and purpose of punishment but because the onset of mental illness in prison is an additional cost the prisoner bears which is not accounted for in the punishment imposed by the law.
The Court, in justifying its ultimate conclusion, synonymises three different stages within the realm of the death penalty, that is, sentencing, post-conviction, and execution, created for fundamentally different purposes. While the judgment might appear to be a case of confused semantics, these semantics go to the very core of death penalty jurisprudence in India. Applying an execution rationale and standard at the sentencing stage and using it in a post-conviction framework is not just a case of confused semantics, it speaks to a much larger incoherence within the death penalty jurisprudence about the “who” and the “why” of death deservedness.
1 Accused ‘X’ v State of Maharashtra, Review Petition (Criminal) No 301 of 2008 in Criminal Appeal No 680 of 2007. Recognising the right to confidentiality and privacy guaranteed to all persons with mental illness under the Mental Healthcare Act, 2018 the Court of its own volition refused to disclose the name of the accused.
2 Bachan Singh v State of Punjab (1980) 2 SCC,
3 Para 209, Bachan Singh.
4 Para 69, accused ‘X’ v State of Maharashtra.
5 Para 209, Bachan Singh.