Administrative apathy coupled with legal quagmires has made prison a breeding ground for human rights violations, and prisoners[1] a vulnerable population[2]. Overcrowding, custodial violence, enforced solitude, lack of privacy, inadequate health services at the prison has a negative effect on the mental health of the prisoners.[3] Rather than overcrowding the prisons with victims of poor mental health, administrative agencies ought to take initiative to allocate resources within the framework of the justice system to fulfil the objectives of the Mental Healthcare Act, 2017 (2017 Act)[4].
The Model Prison Manual, 2016 suggests that one physiologist ought to be appointed for every 500 prisoners.[5] However, the reality of the prison mental healthcare regime is quite harrowing. The recent Prison Statistics India, 2019 published by the National Crime Records Bureau, reveals that as on 31st December 2019, eighteen (18) out of twenty-nine (29) States and five (5) out of seven (7) Union Territories (UTs) did not have sanctioned posts for Psychologist or Psychiatrist. States like Assam (2), Haryana (2), Punjab (4), and UT like Chandigarh (1) have sanctioned posts without any recruitment.[6] The 2017 Act requires medical officers in the prisons to be trained to provide basic emergency mental healthcare. But, that might be a distant dream, when only 1962 medical staff have been recruited against 3320 sanctioned posts.[7]
Mental health interacts with the criminal justice system at various levels, yet, the stigma exacerbated by the lack of knowledge and recognition of the vast spectrum of mental health makes ‘prisoners’ and ‘mental health’ a lethal combination that lures indifference.
Investigation – Introduction to the Criminal Justice System
During the course of the investigation, the investigating agency might come across evidence of previous history of ‘insanity'[8] of the accused. Thereafter, it becomes the bounden duty of the Investigating Officer to subject the accused to a medical examination and subsequently, place that evidence before the Trial Court. Otherwise, it would result in a serious infirmity in the prosecution case leading to the acquittal of the accused. The accused person’s introduction to the criminal justice system is with the Investigating Officer, who becomes the arbiter of their psychiatric care. Therefore, it is imperative that these officers are diligent in their duty. Unfortunately, an array of Supreme Court judgments[9] and a recent judgment of the Kerala High Court[10] indicate towards the tendency of the Investigating Officers to suppress information with respect to the poor mental health of the accused, in spite of being sufficiently apprised of the mental conditions themselves.
Competence to Stand Trial – Not just an idle formality
Sections 328 and 329 of the Code of Criminal Procedure[11] obligate the Magistrate/Trial Court to adjudge the competence of the accused to undergo enquiry and trial respectively, at the very threshold. These provisions are built-in protection provided by the Code to ensure that the accused is accorded fair trial as envisaged in Articles 21, 22(1) and 39A of the Constitution.
The expressions used in Section 328 is “when a Magistrate hearing enquiry has reasons to believe” and in Section 329 is ‘it appears to the Magistrate or the Court‘, which suggest that even though no specific plea is raised, but material placed on record or demeanour of the accused raises or leads to a reasonable doubt in the mind of the Magistrate/Trial Court that the accused is of unsound mind, it is enjoined upon to enquire into and ascertain their capacity to enter defence/stand trial, or else the trial in its entirety would be vitiated.[12]
Though our country’s socio-economic milieu makes legal aid imperative, unfortunately, it does not guarantee meaningful and effective aid. The legal aid Counsel defending the accused, more often than not enters appearance with a misguided sense of charity, whereas it is their constitutional duty to defend the accused to the best of their abilities.[13] However, given the scheme of the Code, it ought not to be an impediment in the Court’s enquiry into the competence of the accused. Considering that the role of the Public Prosecutor and the Investigating Officer is not limited to ensuring conviction, the Code had bestowed upon them the responsibility to assist the Court, by revealing the relevant material, which indicates the mental incapacity of the accused to stand trial, even when the Defence Counsel fails to discharge their duty.[14]
As per Sections 328 and 329, upon determination, if the Magistrate/Court is satisfied that there is a prima facie case against the accused, then the enquiry/trial would be postponed for such period of time as suggested by psychiatrists or clinical psychologists. Bearing in mind that, indefinite postponement for accused categorized as incurable would violate their personal liberty protected by Article 21 of the Constitution, it ought to be open to the Trial Court while examining the record of evidence to determine prima facie case under Section 329(2) , to consider the defence of insanity under Section 84 of the Indian Penal Code.[15] If a prima facie case is not made out and/or if the Trial Court is satisfied that the case would fall within the contours of the defence of insanity, the accused can be discharged and released under Section 330(3)(a). In cases where the Trial Court infers that, though a prima facie case is made out against the accused, they are not capable of entering defence, it would not hold trial and order the transfer of the accused to a residential facility under Section 330(3)(b), wherein they would be provided education and training.
Insanity Defence – Marred by Inconsistency
Section 84 of the Indian Penal Code absolves a person, who at the time of committing an offence was of unsound mind, from the consequences of their act.[16] Apart from being a substantive provision, the ‘insanity defence’ is distinct from Section 328 and 329 in a way that, it goes into the inquiry of mental incapacity at the time of the commission of the offense, unlike the CrPC provisions, which test the competency at the time of the enquiry/trial.[17]
Interestingly, the Courts have set legal insanity as the threshold for exonerating the accused.[18] Medical insanity needs to be substantiated by legal insanity to stand the test of the ‘insanity defence’. It seems to be the intention of the Courts to ascertain the state of mind of the accused at the crucial time i.e. the time of commission of the offence, which the Court thinks is fit to be gathered from the circumstances which precedes, attends and follows the crime.[19] It is not only that the Courts are interested to look into the cognitive incapacity, moral incapacity or incapacity to know the act is contrary to law, it is also determined to test the degree of ‘insanity’.[20] Another approach is to impute the insanity defence to cases where the prosecution is unable to establish a motive. Though mere absence of motive is not considered as proof of legal insanity[21], under peculiar circumstances motive has weighed with the Courts to rule in favour of the defence[22]. Even when the test envisaged by the statute limits itself to the crucial time, the courts have inconsistently considered subsequent conduct to refuse the protection of the insanity defence.[23] The determination by the Courts devoid of any guiding principle fails to instill faith in the objectivity of the process.
A careful perusal of Section 84 makes it clear that, the statute aims to extend the defence to persons with ‘unsoundness of mind‘. The term ‘unsoundness of mind‘ though quite extensive in itself, is limited by the expressions that precedes it, i.e., “at the time of doing it (the commission of the offence)” and succeeds it, i.e., ‘is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law‘. Given the Courts’ insistence to meet the threshold of legal insanity, it is surprising that where the defence of the accused is that of a mental illness, the Courts are quite eager to extend the defence on the basis of a presumption, without actually subjecting it to the test of ‘legal insanity’.[24] The Courts’ scale for determination of the defence of insanity ranging from too pedantic and constrictive to too expansive is incongruous with the scope of the statute. Judicial subjectivity on the face of it, such infirmity in the determination of the Courts go deeper and point towards the lack of understanding of the spectrum of mental health. Therefore, instead of leaving the defence of insanity to the mercy of the judicial subjectivity, the Courts need to consult with medical experts to chart out a standardized procedure in consonance with the relevant study of mental health, to eradicate the vast inconsistency in scrutinizing the defence of insanity.[25]
Standard of proof – Create Reasonable Doubt
The general burden of proof is always on the prosecution to establish beyond reasonable doubt the guilt of the accused. In the light of Section 105 of the Evidence Act, in order to establish the defence of Section 84, the accused ought to simply prove the existence of circumstances bringing their case within the scope of the exception. Even if the defence cannot prove conclusively, but create a reasonable doubt in the mind of the Courts regarding the lack of mens rea, the prosecution’s case will fall, because then it would have failed to discharged its burden of proving guilt beyond reasonable doubt.[26]
Sentencing – From Bachan Singh to Accused X v. State of Maharashtra
Sentencing is a socio-legal process, wherein a Judge finds an appropriate punishment for the accused considering factual circumstances and equities.[27] Passing the buck to the Legislature, the Courts have refrained from developing a ‘definitive sentencing policy‘, but have laid down guidelines in order to discharge their discretion in evaluation of sentencing in a principled manner. These guidelines applicable to sentencing as a whole mostly have their genesis in the context of Section 354(3) CrPC[28] in death penalty cases. In Bachan Singh[29], the Supreme Court, inter alia, considered ‘offence was committed under the influence of extreme mental or emotional disturbance‘ and ‘the condition of the accused showed that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct‘ as mitigating circumstances for accused persons with poor mental health, and the same have been meticulously followed in the subsequent judicial pronouncements until 2019, when in Accused X v. State of Maharashtra[30] the Supreme Court expanded the ambit of mitigating circumstances by introducing the consideration of ‘post-conviction mental illness‘. It seems to be a huge leap from the approach adopted in Bachan Singh, wherein the Court considered the mitigating factors in light of the commission of the offence. It is unclear as to how post-conviction mental health, which might not have any relation with the commission of the offence, is to be considered, while the Courts determine the sentence to be awarded to the accused specifically in relation to an offence held to have been committed by them.[31]
In commuting death sentence on the consideration of ‘post-conviction mental illness‘ as a mitigating circumstance, the attention seems to be diverted from the larger question of violation of constitutionally protected rights of prisoners. Article 21 bestows a duty on the state to not deprive a person of his life or personal liberty except procedure established by law. ‘Post conviction mental illness‘ reeks of the State’s breach of its constitutional duty and the same ought to be sufficient to commute the death sentence to life imprisonment, even without the aid of any ‘mitigating circumstances’.[32]
Execution of death sentences
The execution of death sentence of a person with ‘mental illness’ has been prohibited by Resolution 2000/65 dated 27-4-2000 of the U.N. Commission on Human Rights titled “The Question of Death Penalty”; Clause 89 of the Report of the Special Rapporteur on Extra-judicial Summary or Arbitrary Executions published on 24-12-1996 by the UN Commission on Human Rights under the caption “Restrictions on the use of death penalty” and the Resolution adopted on 18.12.2007 by the United Nations General Assembly in its Sixty-second Session.[33] Apart from these international documents, the Eighth Amendment to the United States Constitution precludes the execution of someone, who is incompetent to comprehend the raison d’être of execution. The standard set by the Supreme Court of the United States is whether defendants understand the rationale for their execution and not on whether they were suffering from a severe mental disorder or disability that significantly impairs their understanding of reality and ability to control behavior at the time of the crime.[34] However, by considering the degree of mental incapacity as a criterion for determining the competence of the accused for execution, the Courts had introduced a ‘severity test’.[35] Deterrence being one of the primary factors in validating the constitutionality of death penalty, at the time of execution, it appears what the Courts really aim to inquire into is, if the execution of an accused who is ‘mentally ill’ would further the goal of retribution and deterrence.[36]
Back home, the State jail manuals, which lays down the procedure for execution of death penalty have provisions to stay the process when a convict under sentence of death develops ‘insanity’ after conviction.[37] This process has now been further strengthened by the direction of the Supreme Court, which states that – it is necessary that after the mercy petition is rejected and the execution warrant is issued, the Prison Superintendent should satisfy himself on the basis of medical reports by the government doctors and psychiatrists that the prisoner is in a fit physical and mental condition to be executed. If the Superintendent is of the opinion that the prisoner is not fit, he should forthwith stop the execution, and produce the prisoner before a Medical Board for a comprehensive evaluation and shall forward the report of the same to the State Government for further action.[38]
At the stage of execution, the Court also considers crucial supervening circumstances to decide on the commutation of death sentence to life imprisonment. Without losing sight of the reality that, it takes almost a decade to execute death row prisoners and in the interim, the immense anxiety and suffering affects their mental health, the Supreme Court has also issued directions to conduct regular mental health evaluation of all death row convicts and to provide appropriate medical care to those in need.[39]
Recognising the aspirations of the Mental Healthcare Act, 2017 and guided by the doctrine of parens patriae, the Courts have taken initiative to lay the course for a functional mental health care ecosystem at prisons. The State Government’s obligation to set up a mental health establishment in the medical wing of at least one prison in each State and UT has been taken note of in more than just a few cases, and the Courts are encouraging the referral of the prisoners with mental health concerns to these mental health establishments.[40] Recently, in a suo motu matter, the Kerala High Court[41] observed that, even when an accused with poor mental health is found to be eligible for discharge or released on bail or is acquitted, they often have to stay back at prison or a mental health facility until their kin or kith volunteers to take them home. Even after acquittal when they are left to perish in prisons and mental healthcare establishments, then the mental health crisis is no longer a legal problem but is a health care emergency, which needs immediate State intervention. Being aware that a ‘mentally ill’ prisoner might not be taken back by the community and would languish in prisons for years, the High Court had directed the State Government to implement the ameliorative provisions of the 2017 Act at the earliest. However, all good intentions of the Courts would whittle down to mere verbiage, until and unless the executive efficaciously discharges its duty in light of the judicial and legislative discourse, which is more informed and is abreast of the latest developments in the field of psychiatry and allied disciplines.
References
[1]The term encompasses all persons detained, incarcerated or imprisoned.
[2]Dealing with Mental Health Issues in Prisoners during COVID-19: A Handbook, National Institute of Mental Health and Neuroscience, available at https://www.mha.gov.in/sites/default/files/Advisorymentalhealthissuesprisoners_24062021.pdf
[3]Mental Health and Prisons, Information Sheet, World Health Organisation and International Red Cross, available at https://www.who.int/mental_health/policy/mh_in_prison.pdf
[4]Section 2(w), Section 31(2), Section 73, Section 82(1)(f), Section 93(2), Section 100, Section 103, Mental Healthcare Act, 2017, available at https://egazette.nic.in/WriteReadData/2017/175248.pdf
[5]India Justice Report, 2019, available at https://www.tatatrusts.org/upload/pdf/prisons-backgrounder.pdf
[6]Prison Statistics India, 2019, National Crime Records Bureau, available at https://ncrb.gov.in/sites/default/files/PSI-2019-27-08-2020.pdf
[7] Id.
[8]Acknowledging the importance of semantics, the term is applied here in consonance with legal usage.
[9]Devidas Loka Rathod v. State of Maharashtra, (2018) 7 SCC 718 available at https://indiankanoon.org/doc/60708046/; Bapu v. State of Rajasthan (2007) 8 SCC 66 available at https://indiankanoon.org/doc/673880/
[10]Lalitha @Latha v. State of Kerala Crl. A. No. 777 of 2019 available at https://www.livelaw.in/pdf_upload/kerala-high-court-394945.pdf
[11]Section 328 and Section 329, Code of Criminal Procedure, 1973, available at https://legislative.gov.in/sites/default/files/A1974-02.pdf
[12]State of Gujarat v. Manjuben 2020 CriLJ 1042 available at https://www.livelaw.in/pdf_upload/pdf_upload-359213.pdf
[13]Kishore Chand v. State of Himachal Pradesh (1991) 1 SCC 286 available at https://indiankanoon.org/doc/955616/; Madhav Hayawadanrao Hoskot v. State of Maharashtra (1978) 3 SCC 544 available at https://indiankanoon.org/doc/513169/; Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar (1980) 1 SCC 98 available at https://indiankanoon.org/doc/1373215/
[14]supra note 12.
[15]Kaliyappan v. State 2020-2-LW(Crl)407 available at https://indiankanoon.org/doc/150120476/
[16]Section 84, Indian Penal Code, available at https://legislative.gov.in/sites/default/files/A1860-45.pdf
[17]supra note 12.
[18]Amrit Bhushan Gupta v. Union of India (1977) 1 SCC 180 available at https://indiankanoon.org/doc/1594389/
[19]Dahyabhai Chhaganbhai Thakker v. State of Gujarat AIR 1964 SC 1563 available at https://indiankanoon.org/doc/1589322/
[20] Soumya AK, Maitreyi Misra and Anup Surendranath, Shapeshifting and Erroneous: The Many Inconsistencies in the Insanity Defence in India, NUJS Law Review, 14 Rev 2, 2021 available at http://nujslawreview.org/wp-content/uploads/2021/08/14.2-AK-Misra-Surendranath.pdf
[21]Hari Singh Gond v. State of Madhya Pradesh (2008) 16 SCC 109 available at https://indiankanoon.org/doc/1395565/
[22]Kamala Bhuniya v. State of West Bengal 2006 CriLJ 998 available at https://indiankanoon.org/doc/229928/;Durga Domar v. State of Madhya Pradesh (2002) 10 SCC 193 available at https://www.casemine.com/judgement/in/56b48d29607dba348fff1474
[23]Jai Lal v. Delhi Administration AIR 1969 SC 15 available at https://indiankanoon.org/doc/309354/; Surendra Mishra v. State of Jharkhand (2011) 11 SCC 495 available at https://indiankanoon.org/doc/1259566/
[24]supra note 20.
[25]Suresh Bada Math, Channaveerachari Naveen Kumar and Sydney Moirangthem, Insanity Defense: Past, Present, and Future available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4676201/
[26]supra note 19.
[27]Accused X v. State of Maharashtra (2019) 7 SCC 1 available at https://indiankanoon.org/doc/155869274/
[28] Section 354(3), Code of Criminal Procedure, 1973 available at https://legislative.gov.in/sites/default/files/A1974-02.pdf
[29](1980) 2 SCC 684 available at https://indiankanoon.org/doc/1201493/
[30]supra note 27.
[31]Maitreyi Misra and Neetika Vishwanath, Mental Illness, Sentencing and the Death Penalty available at https://www.project39a.com/op-eds/2019/6/5/mental-illness-sentencing-and-the-death-penalty
[32]Id.
[33]Shatrughan Chauhan And Anr. v. Union of India And Ors. (2014) 3 SCC 1 available at https://main.sci.gov.in/jonew/judis/41163.pdf
[34]Severe Mental Illness and the Death Penalty, American Bar Association Death Penalty due Process Review Project December 2018 available at https://www.americanbar.org/groups/crsj/projects/death_penalty_due_process_review_project/severe-mental-illness-initiative/
[35]Report: Mental Illness and the Death Penalty, 2009, ACLU available at https://www.aclu.org/report/report-mental-illness-and-death-penalty
[36]supra note 34; Eileen P. Ryan. Sarah B. Berson, Mental Illness and the Death Penalty, Saint Louis University Public Law Review, Vol 25, available at https://core.ac.uk/download/pdf/234186518.pdf
[37]Rule 846, Rule 866, Rule 867, Delhi Prison Rules, 2018, available at http://tte.delhigovt.nic.in/wps/wcm/connect/ad693e00479000078773c72dd8755fce/Jail+manual+2018.pdf?MOD=AJPERES&lmod=-820682994&CACHEID=ad693e00479000078773c72dd8755fce; Rule 11.23 to 11.29, Model Prison Manual 2003, Bureau of Police Research and Development, Ministry of Home Affairs Government of India available at https://bprd.nic.in/WriteReadData/userfiles/file/5230647148-Model Prison Manual.pdf
[38]supra note 33.
[39]Id.
[40]Section 103, Mental Healthcare Act, 2017 available at https://egazette.nic.in/WriteReadData/2017/175248.pdf
[41]Suo Motu v. State of Kerala and Ors. OP(Crl) No. 487 of 2019 available at https://images.assettype.com/barandbench/2021-08/98519d42-5548-4d1c-8709-79ae2e4cac1c/Kerala_HC_Suo_Motu___Mental_Health_Prisoners.pdf
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