Solitary Confinement Of Death Convict Prior To Rejection Of Mercy Petition Palpably Illegal: SC

BY: ASHOK KINI2 May 2019 8:41 AM 

"On receipt of a mercy petition, the Department concerned has to call for all the records and materials connected with the conviction." 

The Supreme Court has observed that solitary confinement of a person sentenced to death prior to the rejection of mercy petition is palpably illegal. The bench comprising Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice S. Abdul Nazeer upheld the Punjab and Haryana High Court judgment that had commuted death sentence awarded to a murder accused whose mercy petition was rejected by the President of India in 2013.

The Death sentence awarded to Dharam Pal, in a murder case, was affirmed by the Supreme Court in the year 1999. His petition seeking pardon, filed in 1999, was rejected by the President in the year 2013. The Punjab and Haryana High Court allowed his writ petition and commuted the death sentence to life imprisonment in light of the change in circumstances- his acquittal in the rape case, which was an important deciding factor by this Court in negating his appeal and delay in deciding his mercy petition by the President, among other ground.

Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice S. Abdul Nazeer 

Convict cannot be said to be "under sentence of death" till the mercy petition is rejected.

In this proceeding, the centre admitted that Dharam Pal remained in solitary confinement for a period of 18 years, and has undergone imprisonment for a total period of more than 25 years till date. Referring to Sunil Batra judgment, the bench observed that even if the Sessions Court has sentenced the convict to death, subject to the confirmation of the High Court, or even if the appeal is filed before the High Court and the Supreme Court against the imposition of death punishment and the same is pending, the convict cannot be said to be "under sentence of death" till the mercy petition filed before the Governor or the President is rejected. 

In this regard, the bench observed: 

"Throughout the period of deciding his mercy petition by the President, he was kept in solitary confinement in various jails. Solitary confinement prior to the disposal of the mercy petition is per se illegal and amounts to separate and additional punishment not authorized by law… …. Thus, solitary confinement prior to the rejection of mercy petition, which has taken place in spite of various decisions of this Court to the contrary, is unfortunate and palpably illegal. In the present case, the Respondent underwent such a long period of solitary confinement that too, prior to his mercy petition being rejected, thereby making it a formidable case for commuting his death sentence into life imprisonment, as rightly held by the High Court" 

Prolonged Delay In Execution Of Death Sentence Violates Fundamental Right

The court also upheld the High Court observation that the prolonged delay in execution of a sentence of death has a dehumanizing effect and this has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way so as to offend the fundamental right under Article 21 of the Constitution. 

All Relevant Materials Should Be Placed Before President While He Considers Mercy Petition

The bench further observed that the fact that he was subsequently acquitted in the rape case (SC while confirming his death sentence had taken note of the conviction by Trial Court) has great bearing on the quantum on sentence that ought to be awarded to him and the same should have been brought to the notice of the President while deciding his mercy petition.

On receipt of a mercy petition, the Department concerned has to call for all the records and materials connected with the conviction. When the matter is placed before the President, it is incumbent on the part of the concerned authority to place all the materials such as judgments of the courts, as well as any other relevant material connected with the conviction. 

The bench, taking into account all circumstances, finally directed his release after the completion of 35 years of actual imprisonment including the period already undergone by him.

Source: https://www.livelaw.in/top-stories/solitary-confinement-prior-to-rejection-mercy-petition-illegal--144707 (accessed on 30 May 2019)

Post Conviction Mental Illness Is A Mitigating Factor To Commute Death Sentence

BY: ASHOK KINI15 April 2019 1:47 PM

"This Court cautions against utilization of this dicta as a ruse to escape the gallows by pleading such defense even if such aliment is not of grave severity." 

The Supreme Court has held that post conviction mental illness will be a mitigating factor while considering appeals of death convicts. The bench comprising Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice Indira Banerjee commuted death penalty of a person convicted of rape and murder of two minor girls. The accused was convicted and sentenced to death by the Trial Court in 2001. The High Court confirmed the death sentence. The Supreme Court in November, 2008, dismissed his appeal. Review petitions were also dismissed by circulation. Later, invoking the judgment in Mohd. Arif @ Ashfaq v. The Registrar, Supreme Court of India, he filed petition seeking reopening of review petitions.

Justice N.V. Ramana (L), Justice Mohan M Shantanagoudar (C), Justice Indira Banerjee (R)

Two issues were raised in the Review petition. One is that the Trial Court had not given him a separate hearing while awarding the sentence, in direct contravention of Section 235(2) of the Code of Criminal procedure which provides for the right of pre-sentencing hearing. The counsel for the accused also contended that the execution of persons suffering from mental illness or insanity violates Article 21 of the Indian Constitution and that such mental illness or insanity would be a supervening circumstance meriting commutation of the death sentence to life imprisonment.

Regarding the first issue, the bench observed that as long as the spirit and purpose of Section 235(2) is met, inasmuch as the accused is afforded a real and effective opportunity to plead his case with respect to sentencing, whether simply by way of oral submissions or by also bringing pertinent material on record, there is no bar on the pre-sentencing hearing taking place on the same day as the pre-conviction hearing. Depending on the facts and circumstances, a separate date may be required for hearing on sentence, but it is equally permissible to argue on the question of sentence on the same day if the parties wish to do so, the bench added. The bench also considered in detail the question whether post conviction mental illness can be considered a mitigating factor to commute the death penalty. 

The bench observed:

"Considering that India has taken an obligation at an international forum to not punish mental patients with cruel and unusual punishments, it would be necessary for this Court to provide for a test wherein only extreme cases of convicts being mentally ill are not executed. Moreover, this Court cautions against utilization of this dicta as a ruse to escape the gallows by pleading such defense even if such aliment is not of grave severity."

The bench issued these directives: 

• That the post-conviction 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 multi-disciplinary 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 herein 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 this case, the bench noted that the reports of psychiatrist suggested that the accused has been reeling under bouts of some form of mental irritability since 1994. Commuting the sentence to life imprisonment sans remission, the bench also directed the state to his case under the provisions of the Mental Healthcare Act, 2017 and if found entitled.

Source: https://www.livelaw.in/top-stories/post-conviction-severe-mental-illness-is-a-mitigating-factor-144301 (accessed on 30 May 2019)