Prof. Bhullar’s death penalty: Executing the mentally ill

September 18, 2013

This is a guest blog post by Shruti Iyer, an intern from King’s College London.


The sentencing of Professor Devender Pal Singh Bhullar to death and the repeated refusal of the judiciary to commute his sentence raises several issues worth examining – the lack of incriminating evidence, custodial torture resulting in an inauthentic confession, the draconian nature of the law he was tried under (which has since been repealed), a dissenting judge that recommended acquittal while capital punishment was still upheld, and a lack of legal counsel among others. While there were serious procedural and evidential errors in the trial that support a re-examination of his case, a pressing concern is Professor Bhullar’s mental health, which has deteriorated steadily over the last 18 years that he has been awaiting his fate.


Executing a mentally ill person is condemned widely by international law – the UN Commission on Human Rights urged all states “not to impose it on a person suffering from any mental disorder” and it has repeatedly urged India to enact domestic legislation that brings the practice in line with international legal standards. The UN ECOSOC, Implementation of Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty, requires the elimination of the death penalty for “persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence of execution.” The Indian Penal Code (IPC), however, only excludes those with mental disorders at the time of committing the crime in Section 84 (and only if they could not understand the nature of the act or its wrongfulness) from execution. The IPC clause fails to understand that mental illness is pervasive in the criminal justice system, and the legal system needs to be sensitized to the conditions in prison that either causes mental deterioration or exacerbate it.


The American Supreme Court ruled in Atkins v. Virginia (2002) that the execution of those with intellectual disability is unconstitutional, as it amounts to “cruel or unusual punishment” – however, it left it up to the individual states to decide what constituted “mental retardation” exactly, and for that reason, the execution of mentally ill prisoners still continues in some states. The European Union has repeatedly stated that the execution of persons suffering from any form of mental disorder neglects the dignity and worth of the human person, a point worth noting. If true, the execution of Professor Bhullar would contravene Article 21 of the Indian Constitution, which in the light of expansion by the Supreme Court can be read as the right to live with human dignity.


The conditions of confinement worsens the mental anguish that prisoners suffer from, and this has been noted by Indian courts, causing one judge to note in Rajendra Prasad v. State of Uttar Pradesh(1979): “[he] must now be more of a vegetable than a person, and hanging a vegetable is not the death penalty.” Several Indian appellate courts also take into account the length of time spent on death row while determining whether to quash the death sentence because of the “dehumanizing character of the delay,” as in Vatheeswaran v State of Tamil Nadu (1983). This affront to human rights has been reaffirmed by courts the world over – the European Court of Human Rights found that death row syndrome can be a violation of the European Convention on Human Rights as it constituted “inhumane or degrading treatment or punishment” and so has the United Nations Human Rights Committee. The Judicial Committee of the Privy Council (one of the highest courts of the United Kingdom) found a case of inhuman punishment because of a fourteen-year delay in sentencing and execution. The Supreme Court of Zimbabwe has ruled that prolonged delays and harsh conditions of incarceration violated their prohibition against “cruel and unusual” treatment. The death row syndrome, caused by long sentences, harsh conditions of confinement and the debilitating mental effects on a prisoner (which has been described by one court to constitute “psychological torture”) has clearly been ignored by Indian courts in Professor Bhullar’s case, a man who has waited eighteen years on death row and exhibits unmistakable signs of mental anguish.


Death row circumstances aside, it is at odds with morality and well established legal doctrines the world over to execute a man who is mentally ill, irrespective of the time the illness was developed. The Indian Supreme Court ruled in 1983 that the death penalty would only be imposed in “the rarest of the rare cases” and the execution of Professor Bhullar does not appear to fit this stipulation, especially considering that one judge dissented and recommended acquittal in his trial. The Tihar Jail manual also states that the mentally ill cannot be executed, and jail officials have since gone on record to state that he cannot be hanged until he is declared mentally and physically fit. There is evidence that these procedures were not properly administered, as the doctors at the facility where Bhullar is receiving treatment claim to have not been consulted before the petition was dismissed in mid-August. He has attempted suicide three times, exhibits signs of psychosis and is undergoing treatment for depression but has shown marginal improvement. It is also worth noting that the Draft Mental Health Care Bill of 2012 assumes that all those who commit suicide (or attempt to) are suffering from a mental illness and that another man on death row from Belgaum recently had a stay on his execution due to multiple suicide attempts. The inconsistencies in our judicial process are glaringly evident.


The system has failed in adequately assessing his mental health – in fact, the Supreme Court rejected the petition to commute his sentence on the grounds of the “enormity of the crime,” a crime which it is worth mentioning that there is considerable doubt that he ever committed – and this severely impacts the lawfulness of executing him, as well as his continued imprisonment. Professor Bhullar’s mental condition has been exacerbated (and arguably even caused) by a failure of the judicial system, and on humanitarian grounds, his sentence should, at the very least, be commuted. To not do so would be a serious miscarriage of justice, a failure to show compassion towards the mentally ill and a reversal of the stringent standards the judiciary once applied while awarding capital punishment. We cannot continue to hinge the lives of our citizens on the basis of a system that is ridden with loopholes.