Mental illness to spare death row convicts; Appointment of arbitrator by an ineligible person void: SC- Current Affairs
To prevent the misuse of the direction, the top court stated that the burden would be on the accused to prove with clear evidence that he is suffering with severe mental illness.
Story 1- Mental illness ground to spare death row convicts from gallows: SC
The Supreme Court of India on April 18, 2019 directed that mental illness of people on death row, if developed post-conviction, would now be a mitigating factor for appellate courts for sparing them from the gallows.
The ruling was passed by a three-judge bench comprising Justices M M Shantanagoudar and Indira Banerjee, headed by Justice NV Ramana.
The Judgement: Key Highlights
The bench was faced with complex questions concerning the relationship between mental illness and crime and as to how culpability of a convict can be assessed if he develops a mental condition after the court finds him guilty.
While outlining directions to be followed by appellate courts on sentencing mentally-ill accused, the bench stated 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 the death penalty.
The bench stated that the assessment of such a disability will be conducted by a multidisciplinary team comprising qualified professionals including professional with expertise in accused person's particular mental illness.
How to prevent misuse of the judgement?
• In order to prevent the misuse of the direction, the top court stated that the burden would be on the accused to prove by a preponderance of clear evidence that he is suffering with severe mental illness.
• The court stated that the accused will have to demonstrate active, residual or prodromal symptoms that the severe mental disability was manifesting.
• The court stated that the state government would be at liberty to offer evidence to rebut such claim of insanity or mental illness.
• It also stated that in appropriate cases, a panel could be set up to submit an expert report on the claim of mental illness of convicts.
• Further, to understand the phenomenon of post-conviction mental illness, the bench took note of the reports of the World Health Organisation and the International Red Cross.
According to the top court, in order to be spared from death row, the offender needs to have a severe mental illness or disability, which 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.
The mental disorders, for sparing the death row convicts from the gallows, would generally include schizophrenia, other serious psychotic disorders, and dissociative disorders with schizophrenia.
Until now, an accused could take the plea of legal insanity under the Indian Penal Code to avoid criminal prosecution and the defence was made relatable to the moment when the crime is committed.
The ruling came while the Supreme Court was hearing the case of a prisoner with an alleged mental condition, who was given death penalty in a barbaric rape and murder of two minor cousins in Maharashtra in 1999.
The condemned prisoner who had not been identified in the verdict owing to his mental condition was spared by the three-judge bench of the apex court.
The court, however, took note of “barbaric and brutal manner of commission of the crime” and awarded the jail term to the convict for “remainder of his life” with the direction to the government to ensure proper mental health care to him.
Story 2- Appointment of arbitrator by an ineligible person is itself void: SC
The Supreme Court of India has held that the appointment of arbitrator by a person who himself is ineligible to be an arbitrator as per Section 12(5) of the Arbitration and Conciliation Act 1996 is itself void.
The ruling was made by bench of judges comprising Justices R F Nariman and Vineet Saran. The bench followed the 2017 decision in TRF Ltd. v Energy Engineering Projects Ltd (2017) 8 SCC 377 (TRF Ltd), which had held that an ineligible person cannot appoint an arbitrator.
• The court ruled that in a case where such a person becomes "ineligible" to be appointed as an arbitrator, there is no question of challenge to such arbitrator, before such arbitrator.
• In such a scenario, the case which falls under Section 12(5), Section 14(1)(a) of the Act gets attracted in as much as the arbitrator becomes, as a matter of law, unable to perform his functions under Section 12(5), being ineligible to be appointed as an arbitrator.
• This being so, the mandate of the arbitrator automatically terminates, and he shall then be substituted by another arbitrator under Section 14(1) itself.
• The court stated that it is only if a controversy occurs concerning whether he has become de jure unable to perform his functions as such, that a party has to apply to the Court to decide on the termination of the mandate unless otherwise agreed by the parties.
• Thus, in all Section 12(5) cases, there is no challenge procedure to be availed of. If an arbitrator is unable to perform his functions, as he falls within any of the categories mentioned in Section 12(5), a party may apply to the Court, which will then decide on whether his mandate has terminated."
The ruling came after a dispute was lodged at the top court over a dispute between Bharat Broadband Network Ltd(BBNL) and United Telecoms Ltd (UTL).
The disputes arising out of the agreement between them had to be referred to arbitration by the Chairman and Managing Director of BBNL or to any person appointed by him.
In relation to contractual disputes, UTL invoked the arbitration clause on January 3, 2017, and sought for appointment of arbitrator. The CMD of BBNL appointed one K H Khan as arbitrator.
After that, on July 3, 2017, the SC decision in TRF Ltd. case that an ineligible arbitrator cannot appoint another arbitrator came.
Citing this decision, BBNL sought withdrawal of Khan from the proceedings. However, UTL did not object to the continuation of Khan, who was appointed by BBNL's CMD.
Further, Khan rejected the request for withdrawal. This was then challenged under Section 14 & 15 of the Act by BBNL before the Delhi High Court.
The High Court had rejected the challenge, holding that BBNL was stopped from questioning the mandate of the arbitrator appointed by it.
Challenging the High Court's judgment, BBNL approached the Supreme Court. Allowing the appeal of BBNL, the judgment authored by Justice Nariman stated that ineligibility under Section 12(5) of the Act was de jure in nature, leading to automatic termination of his mandate.
The apex court noted that CMD of BBNL was himself an ineligible person as per Item 5 of Seventh Schedule, which barred manager, director of a party to the dispute from being an arbitrator.