India is a member of the United Nations and has ratified the International Covenant on Civil and Political Rights (ICCPR). A large number of United Nations international documents prohibit the execution of death sentence on an insane person. Clause 3(e) of the Resolution 2000/65 dated 27.04.2000 of the U.N. Commission on Human Rights titled “The Question of Death Penalty” urges “all States that still maintain the death penalty not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person”. It further elaborates :
“3. Urges all States that still maintain the death penalty :
(a) To comply fully with their obligations under the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, notably not to impose the death penalty for any but the most serious crimes and only pursuant to a final judgement rendered by an independent and impartial competent court, not to impose it for crimes committed by persons below 18 years of age, to exclude pregnant women from capital punishment and to ensure the right to a fair trial and the right to seek pardon or commutation of sentence;
(b) To ensure that the notion of “most serious crimes” does not go beyond intentional crimes with lethal or extremely grave consequences and that the death penalty is not imposed for non-violent financial crimes or for non-violent religious practice or expression of conscience;
(c) Not to enter any new reservations under article 6 of the International Covenant on Civil and Political Rights which may be contrary to the object and the purpose of the Covenant and to withdraw any such existing reservations, given that article 6 of the Covenant enshrines the minimum rules for the protection of the right to life and the generally accepted standards in this area;
(d) To observe the Safeguards guaranteeing protection of the rights of those facing the death penalty and to comply fully with their international obligations, in particular with those under the Vienna Convention on Consular Relations;
(e) Not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person;
(f) Not to execute any person as long as any related legal procedure, at the international or at the national level, is pending;
4. Calls upon all States that still maintain the death penalty :
(a) Progressively to restrict the number of offences for which the death penalty may be imposed;
(b) To establish a moratorium on executions, with a view to completely abolishing the death penalty;
(c) To make available to the public information with regard to the imposition of the death penalty;
5. Requests States that have received a request for extradition on a capital charge to reserve explicitly the right to refuse extradition in the absence of effective assurances from relevant authorities of the requesting State that capital punishment will not be carried out; 6. Requests the Secretary-General to continue to submit to the Commission on Human Rights, at its fifty-seventh session, in consultation with Governments, specialised agencies and inter Governmental and non-Governmental organizations, a yearly supplement on changes in law and practice concerning the death penalty worldwide to his quinquennial report on capital punishment and implementation of the Safeguards guaranteeing protection of the rights of those facing the death penalty;
7. Decides to continue consideration of the matter at its fifty-seventh session under the same agenda item.
66th meeting
26 April 2000″
Similarly, 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” states that “the imposition of capital punishment on mentally retarded or insane persons, pregnant women and recent mothers is prohibited”. Further, Clause 116 thereof under the caption “Capital punishment” urges that “Governments that enforce such legislation with respect to minors and the mentally ill are particularly called upon to bring their domestic criminal laws into conformity with international legal standards”.
United Nations General Assembly in its Sixty-second session, adopted a Resolution on 18.12.2007, which speaks about moratorium on the use of the death penalty. The following decisions are relevant :
“1. Expresses its deep concern about the continued application of the death penalty;
2. Calls upon all States that still maintain the death penalty :
(a) To respect international standards that provide safeguards guaranteeing protection of the rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984;
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76th plenary meeting
18 December 2007″
The following passage from the Commentary on the Laws of England by William Blackstone is relevant for our consideration :
“…In criminal cases therefore idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself. Also, if a man in his sound memory commits a capital offense, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought.
And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defense? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.”
India too has similar line of law and rules in the respective State Jail Manuals. Paras 386 and 387 of the U.P. Jail Manual applicable to the State of Uttarakhand are relevant for our purpose and are quoted hereinbelow :
“386. Condemned convicts developing insanity – When a convict under sentence of death develops insanity after conviction, the Superintendent shall stay the execution of the sentence of death and inform the District Magistrate, who shall submit immediately a report, through the Sessions Judge, for the orders of the State Government.
387. Postponement of execution in certain cases – The execution of a convict under sentence of death shall not be carried out on the date fixed if he is physically unfit to receive the punishment, but shall not be postponed unless the illness is both serious and acute (i.e. not chronic). A report giving full particulars of the illness necessitating postponement of execution should at once be made to the Secretary to the State Government, Judicial (A) Department for the orders of the Government.”
Similar provisions are available in Prison Manuals of other States in India.
The above materials, particularly, the directions of the United Nations International Conventions, of which India is a party, clearly show that insanity/mental illness/schizophrenia is a crucial supervening circumstance, which should be considered by this Court in deciding whether in the facts and circumstances of the case death sentence could be commuted to life imprisonment. To put it clear, “insanity” is a relevant supervening factor for consideration by this Court.
In addition, after it is established that the death convict is insane and it is duly certified by the competent doctor, undoubtedly, Article 21 protects him and such person cannot be executed without further clarification from the competent authority about his mental problems.
Reference
Shatrughan Chauhan v. Union of India (1947)