Execution Of Death Penalty Of Mentally Retarded Convicts: An Analytical Study

The law should not be seen to sit limply, while those who defy it go free and, those who seek its protection lose hope.”

~ Queen’s Bench Judgment in Jennison v. Backer, 1972 (1) All E.R. 1006.


A life with dignity is not only a cherished accomplishment of human existence, rather it is an essential value that must be upheld so as to ensure the purity of constitutional democracy. The Constitution being the supreme legal document, seeks to enforce the equal rights for each and every individual. The persons must live their life to the fullest and they should be given all the opportunities to develop their respective inner potentials. The authorities who are at the helm of the affairs must own the liability to provide the essential requirements without which the life of a person cannot be said to be meaningful. Though, the circumstances of the individuals vary from one to another and admittedly everyone cannot be given the right to satisfy their inordinate and excessive economic or other avarices, still reasonable opportunities, which are permissible and warranted under the rule of law ought to be provided to all. The authorities must not take the plea of professional maladroitness.


Sentencing involves curtailment of liberty and freedom for the accused. Under Article 21 of the Constitution the right to life and liberty cannot be impaired unless deprived by the procedure established by law. Death penalty which inevitably deprives a person from his most sacrosanct right to life, is subjected to various substantive and procedural protections under criminal justice system. As ruled in Navtej Singh Johar v. Union of India,1 an irreducible core of right to life is ‘dignity’. Right to human dignity comes in different shades and colours.2 Life includes right to live with human dignity.3 It would include all those aspects of life which go to make a person’s life meaningful4, worth-living5 and complete.6 Dignity of human being inheres a capacity for understanding rational choice. The Supreme Court has rightly observed in Accused ‘X’ v. State of Maharashtra,7 that the right to dignity of an accused does not dry out with the judge’s ink, rather it subsists well beyond the prison gates and operates until his last breath.

The Mental Healthcare Act, 20178 has attempted to deliver the essential mechanism to shield the rights of persons who are victims of mental retardation. The legislators have felt the urgent need to address the issue as there was a lack of effective policies to govern the matter and to redress the ordeals of mentally disabled persons. It is widely recognised that such persons require more care and protection. Section 20(1) of the Act recognises and mandates a right to life with dignity for all the persons with mental illness. Again, Section 19(1)(a) of the Act mandates the right of every person with mental illness to live in, be part of and not to be segregated from society. It is to be noted that, the Courts should not omit these provisions and should take them in a serious note while adjudicating the commutation plea of any intellectually affected death-row convict.


The international community has taken manifold steps to safeguard the rights of mentally retarded persons. The United Nations has upheld the humanitarian values and promoted a philanthropist approach even when considering the matters of hardcore convicts. Several conventions are reminiscent of the rich and emphatical approach of the fore-fathers of global human rights jurisprudence. It would be a blunder if we assume that the legal fraternity was unaware of the consequences, specifically the negative repercussions of all these compassionate legislations and policies. It has endeavoured to strike a balance at providing justice both to accused as well as to victims.

The Universal Declaration of Human Rights, 1948 (UDHR) is rightly held as the ‘global charter of rights’ or ‘global bill of rights’. Article 3 of UDHR provides and protects right to life, liberty and security of persons. Here, the term ‘persons’ includes the even the convicted persons with intellectual abnormalities. It puts an obligation upon the signatories to bring in laws which shall ensure the preservation of the rights of incarcerated persons. Further Article 5 of the Declaration expressly bars imposition of torturous, cruel, inhuman and degrading punishment upon any person. There is hardly any doubt that executing death sentence of mentally ill convicts would not merely violate their right to life, rather it would definitely be an inhuman approach of the judicial system to deprive its conscience of the sympathy that the convicts deserve.

Similarly, the International Covenant on Civil and Political Rights, 1966 (ICCPR) has reiterated the obligations of the world community to safeguard the rights of all individuals. Article 6(1) recognizes the inherent right to life of all and it categorically prohibits deprivation of lives in arbitrary manner. Article 6(2) mandates that the wherever death penalty is imposed it must be carried out in accordance to the law and not in derogation to the principles of the Convention. Article 7 reaffirms the Article 5 of UDHR by prohibiting inhuman and cruel punishments. Besides that, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) has made the nations duty-bound to abide by its sympathetic and humanitarian stand.

Above all, the Constitution of India via Article 253 makes it a duty of the Parliament to make laws for implementing any treaty, agreement or convention or any decision made at any international forum. Further, the Law Commission of India has recommended9 for the ratification of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) and has advised the justice delivery system to adhere to the well-cherished principles and rules of this Convention.


In Shatrughan Chauhan & Anr v. Union of India,10 the Hon’ble Supreme Court held that if 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. While reiterating these observations in Navneet Kaur v. State (NCT of Delhi),11 the Court held that insanity or mental illness or schizophrenia is also one of the supervening circumstances for commutation of death sentence. Recently, the Apex Court of the country has vehemently supported the view that the persons who are mentally unwell or ill should not be punished with death penalty.12

It has to be noted that the American Jurisprudence has flayed the idea of imposing unusual punishments over intellectually retarded persons, as they are less expected to conceive the consequences of the punishments. The Supreme Court of the United States (SCOTUS) in Atkins v. Virginia,13 has ruled that executing people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel punishments. However, in Hall v. Florida,14 the Court has emphasized the need to determine whether an individual convict is too intellectually incapacitated to be executed. Hence, it has somewhat narrowed down the scope for the convicts to escape the bars without a specified and reasonable cause.


While advocating the cause for the mentally retarded or intellectually abnormal convicts, the judiciary must not obliviate its sole duty to provide complete justice to victims. This criterion should not be permitted to be an escape-way for brutal convicts. Law must tighten its rigours to capture ruthless persons within its strict mandates. The plea of post-conviction illness is based on appreciation of punishment and right to dignity and it doesn’t bother about the mens rea while the commission of actual crime. It is at the fag end of the process and this mitigating factor was not emergent at the time of commission of the crime, this fact makes it very much vital that this plea should only be allowed when the mental abnormalities are of extreme nature and proof of which has been obtained from a professional medical practitioner. The Apex Court has cautioned against utilization of this criterion as a ruse to escape the gallows by pleading such defense even if such ailment is not of grave severity.15


The judicial system should continuously uphold that right to life of a person doesn’t end with a conviction, rather it continues till the end of life. Though, a punishment curtails liberty of an individual, it is not correct to assert that it deprives him of his most cherished and valued right to life. It needs to be understood that prisoners are relatively more prone to mental and psychological distress and prisons inevitably become home for a greater number of mentally-ill prisoners. They should be treated with compassion and at the same time, comprehensive and inclusive justice ought to be provided to victims, so as to make the justice delivery system not only conscientious but also worthy of trust.

1 AIR 2018 SC 4321.

2 Common Cause v. Union of India, AIR 2018 SC 1665.

3 Jeeja Ghosh v Union of India, (2016) 7 SCC 761; Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746: (1981) 1 SCC 608; Olga Tellis v. Bombay Corporation, AIR 1986 SC 180: (1985) 3 SCC 545.

4 Shantistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630: (1990) 1 SCC 520; Virender Gaur v. State of Haryana, (1995) 2 SCC 577; M.C. Mehta v. Union of India, (2004) 12 SCC 118: AIR 2004 SC 4016.

5 State of Madhya Pradesh v. Kedia Leather & Liquor Ltd., (2003) 7 SCC 389: AIR 2003 SC 3236.

6 Bd. of Trustee of the Port of Bombay v. Nadkarni Dilip Kumar Raghavendra, AIR 1983 SC 109: (1983) 1 SCC 124.

7 Review Petition (Criminal) No. 301 of 2008 in Criminal Appeal No. 680 of 2007.

8 Act No. 10 of 2017.

9 The Law Commission of India, Report No. 273, 2017.

10 Writ Petition (Criminal) No. 55 of 2013.

11 (2014) 7 SCC 264.

12 Accused ‘X’ v. State of Maharashtra, Review Petition (Criminal) No. 301 of 2008 in Criminal Appeal No. 680 of 2007.

13 536 U.S. 304 (2002).

14 572 U.S. (2014).

15 Accused ‘X’ v. State of Maharashtra, Review Petition (Criminal) No. 301 of 2008 in Criminal Appeal No. 680 of 2007.

Jyoti Prakash Dutta

Content Writer, Law Corner, B.A.LL.B(Hons), 3rd year, University Law College, Utkal University, Bhubaneswar, Odisha

Leave a Comment