On 12th April, 2019, in the case of Accused ‘X’ v. State of Maharashtra [Review Petition (Criminal) No. 301 of 2008 in Criminal Appeal No.680 of 2007], where the Petitioner was convicted by the Courts below for kidnapping, rape and murder of two minor girls, and sentenced to death, a three Judge Bench of the Supreme Court examined issues pertaining to (i) non-compliance of Section 235(2) CRPC during the sentencing process and (ii) sentencing of persons suffering from post-conviction mental illness or insanity.



The Supreme Court was deciding a review petition in a case where the Petitioner was convicted and sentenced to death for the rape and murder of two minor girls. One of the questions for consideration before the Supreme Court was whether post-conviction mental illness of the accused would qualify as a mitigating factor for commuting the death sentence to life imprisonment.



In this case, the accused “X” was convicted for the brutal rape and murder of two minor girls. The Trial Court found the case to fall within the ambit of “rarest of rare” and awarded death penalty to the accused. The same was confirmed by the High Court and the Supreme Court. Later, a revision application was filed before the Apex Court which was dismissed by circulation. Then, the review application was reopened citing the case of Mohd. Arif v. Supreme Court of India[1], wherein it was held that all review petitions that have been dismissed by circulation must be reopened. In this “re-opened review petition” it was argued on behalf of the defence that the accused has been awaiting death penalty for 17 years now and has developed acute mental illness meriting the commutation of his death sentence.



The Supreme Court in this case recognized post-conviction mental illness as a mitigating factor to convert death penalty to life imprisonment. The SC noting that there appear to be no set disorders/disabilities for evaluating the ‘severe mental illness’ laid down ‘test of severity’ as a guiding factor for recognizing those mental illnesses which qualify for an exemption. The court noted that these disorders generally include schizophrenia, other serious psychotic disorders, and dissociative disorders with schizophrenia. Therefore, the test envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that a medical professional would objectively consider the illness to be most serious so that he cannot understand or comprehend the nature and purpose behind the imposition of such punishment. The notion of death penalty and the sufferance it brings along causes incapacitation and is idealised to invoke a sense of deterrence. If the accused is not able to understand the impact and purpose of his execution because of his disability, the raison d’etre for the execution itself collapses. The Supreme Court began the judgement by stressing on the importance of reasoning in the sentencing process. It opined that sentencing is an extremely crucial aspect of the criminal justice system as it has severe ramifications upon the liberty of the accused. The Court iterated that for a just sentencing procedure there must be a balance between judicial discretion and the rule of law. Thus, according to the Supreme Court, in order to have a fair sentencing mechanism, the judges must be given the discretion to choose the punishment from the legislatively prescribed range. Moreover, such discretion must be exercised following the judicially set principles. The Court concluded that the sentencing mechanism in Indian would benefit from “uniformity” that can only be brought by the combined effort of legislature and judiciary.

Against the backdrop of the above observation, the Court noted that the prison system in India is plagued by the problems of overcrowding, violence, lack of privacy, and inadequate healthcare facility- all of which have an adverse bearing upon the mental health of the accused. Moreover, criminal cases in India take years to conclude adversely affecting the accused awaiting his fate. In such a scenario, it is extremely likely that the accused may develop mental illness. The Supreme Court held that it is only “reasonable” that the judges take the same (i.e. post-conviction mental illness) into account as a “mitigating factor” in the sentencing procedure. The Court justified its stance by citing the Constitution and its interpretation under various pertinent judgements:

  • Firstly, the Supreme Court stated that Article 20(1) of the Constitution of India mandates that the convict must possess the “knowledge” of the crime committed by him and he/she must be “communicated” the purpose of the death sentence. Therefore, if a person develops mental illness post his conviction which disables him to understand the purpose of his execution, then the “reason d’etre” of the punishment collapses. Thus, the Court believes that no convict who is awarded capital punishment should be executed if he is unable to understand the purpose of his death sentence. Such inability defeats the very reason for granting the punishment in the first place.
  • Secondly, the Supreme Court while citing Navtej Singh Johar vs Union of India[2], iterated that Article 21 of the Constitution protects the right to human dignity in all its shades and colours. This concept of dignity under Article 21 of the Constitution includes “the capacity to understand” which is inherent to all human beings. However, in cases where this capacity is depleted and the convict can no longer understand the purpose of his execution, the right to human dignity mandates the commutation of his/her death sentence. This means that executing a convict who has been suffering from post-conviction mental illness violates his/her right guaranteed under Article 21 of the Constitution.
  • Thirdly, the Supreme Court stated that a post-conviction mental illness has to be taken into account while evaluating whether or not the case falls within the ambit of the “rarest of rare” doctrine as laid down in the case of Bachan Singh v. State of Punjab[3]. The Court held that if at any point before execution, a convict is diagnosed with mental illness that takes away his ability to understand the purpose of his punishment, then the rarest of rare doctrine stops applying and the death penalty can no longer be imposed. Thus, relying upon these considerations, the Court held that execution is not permissible in a case where the convict develops post-conviction mental illness.



India continues to be one of the few democratic countries that inflict capital punishment under their penal provisions. In Bachan Singh, the Supreme Court restricted its application to the “rarest of rare cases”. However, both the legislature and the judiciary have failed to give due recognition to the sufferings of the prisoners who have to wait for years in the shadow of death while battling post-conviction mental illness. It is an established rule of law that Article 21 of the Constitution continues to operate until the prisoner’s last breath. This sacred right of the prisoners put on the death row has been blatantly violated for years while they’re awaiting execution. Thus, the Supreme Court ought to have taken into account all shades of post-conviction mental illness as a reasonable factor for the commutation of the death penalty and not just its “severe” form.

[1] Writ Petition No. 77 of 2014


[3] AIR 1982 3SCC 24

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