Introduction – Capital Sentencing 

On April 28, 2021, the Malawi Supreme Court of Appeal (8:1) declared the capital punishment prescribed by the Penal Code unconstitutional. The majority judgment authored by Justice DF Mwaungulu observed that the ‘right to life is the mother of all rights’. Since the death penalty, stipulated for offences including treason, piracy, rape, murder, genocide, aggravated robbery, and burglary, abolished the very sanctity of life that the Constitution of Malawi guarantees, the same was struck down as unconstitutional. With this, Malawi becomes the 109th State in the world to abolish the death penalty for all crimes. The judgment provides us an opportunity to reflect on legal frameworks in countries that retain and award the death penalty. 

India features among the 56 countries across the world that legally prescribe capital punishment for a catena of criminal offences. The death penalty in India is based on the ‘rarest of rare’ framework: it mandates courts to weigh in aggravating and mitigating circumstances of the crime and the criminal. In 2015, the Supreme Court of India awarded the death penalty to Shabnam, a woman from Amroha in western Uttar Pradesh (Shabnam v. Union of India). Along with her partner, she was convicted for murdering seven members of her family, including a ten-month-old infant. Last year, a three-judge bench of the apex court confirmed capital punishment, thereby making Shabnam the first woman in India who is likely to be executed. Former Chief Justice of India, SA Bobde remarked that it was difficult to accept that any reform in the accused’s behavior could be a mitigating factor.

In this backdrop, the author seeks to examine two aspects w.r.t. capital sentencing in India: first, the framework laid down by the Supreme Court in Bachan Singh v. State of Punjab (1980) to guide judicial discretion in matters of death sentencing; and second, the inconsistencies plaguing the exercise of this judicial discretion. As a caveat to readers, this article is not concerned with discussing the constitutionality of the capital sentencing framework.

Judicial Approaches to the Death Penalty: Bachan Singh and its Inconsistent Legacy

In May 1980, along with upholding the constitutionality of the death penalty (4:1), a five-judge bench of the Supreme Court of India sought to lay down a guiding framework for the exercise of judicial discretion in capital sentencing matters. Earlier in 1898, death penalty was the default punishment for the offence of murder, the Code of Criminal Procedure, 1898 required judges to provide reasons in case they wanted to impose life imprisonment instead of death penalty. The CrPC, 1973, however, brought forth a substantial shift through section 354(3). This provision rendered life imprisonment the default punishment and called for ‘special reasons’ in case the death penalty was to be awarded to the accused. Bachan Singh intended to elucidate a sentencing framework applicable to section 354(3). For this purpose, the Court underlined certain ‘mitigating’ and ‘aggravating’ circumstances that ‘must be given great weight’ in deciding on the death penalty.

The mitigating circumstances include the young or old age of the accused, the probability that s/he could be reformed, and that the offence in question was committed under duress or extreme emotional disturbance. When the offence is committed with previous planning and involves extreme brutality or exceptional depravity, the same constitutes aggravating circumstances. The Court called on the judiciary to place emphasis on both, the crime and the circumstances of the criminal for deciding on the death penalty. It noted that establishing a set of judicially mandated guidelines would mean overstepping into the Legislature’s domain. Despite this, it prescribed the ‘rarest of rare’ cases framework, devoid of any discussion on the standard of evidence to be submitted to establish any aggravating or mitigating circumstances.

Forty years since Bachan Singh, the judicial application of the ‘rarest of rare’ framework has been inconsistent. The 262nd Report of the Law Commission of India observed how despite Bachan Singh’s attempt at creating safeguards against arbitrary imposition of the death penalty, the same continues to be awarded ‘freakishly’. These contradictions may be highlighted through the Supreme Court of India’s divergent emphasis on mitigating circumstances while deciding on the death penalty, and the differences in the evidentiary burden placed on the State. 

Firstly, in Machhi Singh v. State of Punjab (1983), a three-judge bench of the Supreme Court adopted a crime-centric approach to death penalty sentencing. This meant a much lesser emphasis on the mitigating circumstances highlighted by Bachan Singh, and greater emphasis on factors such as the brutality of the crime. Despite the apex court’s warning against categorization of offences for awarding the capital sentence, in Machhi Singh, offences such as multiple murders, or ‘murders in course of betrayal of the motherland’ were specifically mentioned as qualifying for the death penalty. The Court gave no consideration to mitigating factors such as the possibility that the accused may be reformed, in course of taking a crime-centric approach. 

This set a problematic precedent for Courts to follow: in Mahesh v. State of Madhya Pradesh (1987), the apex court observed that the common man understood the ‘language of deterrence more than the reformative jargon’. Deterrence has excessively been relied on as a justification for the imposition of the death penalty, despite there being no concrete evidence demonstrating such a deterrent effect. In Ravji v. State of Rajasthan (1995), the Supreme Court observed that the death penalty must be awarded based on the enormity of the crime committed: in essence, this judgment completely departed from giving any importance to mitigating circumstances.

Secondly, in the absence of any normative clarity on the nature of evidence that the State needs to present in order to establish that no mitigating circumstances exist, inconsistencies in the capital sentencing framework have amplified. The Supreme Court did not place any evidentiary burden on the State in certain cases. In Deepak Rai v. State of Bihar (2013), the capital sentence was upheld for two out of three accused who had burnt a woman and her five children to death. Without demanding any evidence from the State as to why it is impossible for the accused to lead a reformed life, the apex Court came to an ‘inescapable conclusion’ that they cannot be rehabilitated. 

It must be noted that the burden on the State to establish that there is no future value left for the accused’s life must be a very heavy one. In Santosh Kumar Bariyar v. State of Maharashtra (2009), the Supreme Court observed: “mitigating circumstances listed in and endorsed by the judgment give reform and rehabilitation great importance, even requiring the State to prove that this would not be possible, as a precondition before the court awarded a death sentence.” Justice Kurian Joseph took cognizance of the judiciary’s failure to place this evidentiary burden on the State, in Chhannu Lal Verma v. State of Chhattisgarh (2018). Herein, reliance was placed on the superintendent of jail’s certification of the fact that the accused made a conscious effort to lead a good life, in order to commute the death sentence to life imprisonment. 

The inherent malady of rendering the ‘collective conscience’ of the society as a judicial consideration while deciding on the death penalty was also highlighted in Chhannu Lal Verma. Emotionally changing narratives influence what constitutes the ‘collective conscience’. Relying on the same compromises judicial acumen, thereby making it convenient for courts to unduly emphasize on the brutality of the crime. One of the most recent examples of invoking collective conscience to avoid placing an evidentiary burden on the State was observed in the 2012 Delhi gang-rape case of Mukesh v. State (NCT of Delhi) (2017). In paragraph 511, the apex court notes: “Where a crime is committed with extreme brutality and the collective conscience of the society is shocked, courts must award death penalty.”  The introduction of collective conscience in the death penalty framework to satisfy society’s ‘cry for justice’ has rendered the role of mitigating circumstances wholly unpredictable.  

Conclusion to a History of Errors: Can the Capital Sentencing Framework in India be Overhauled? 

Ironically, courts in India have been consistent in awarding the death penalty for certain offences, thereby making sentencing a mechanical process devoid of any consideration to the criminal’s circumstances.  As reported by the Annual Statistics Report (2020) published by Project 39A, though the total number of capital sentences awarded by sessions courts in India has reduced from 153 in 2016 to 77 in 2020, the proportion of cases involving sexual offences has increased. This indicates problematic deviance from Bachan Singh, wherein courts fail to consider the impact of mitigating circumstances for cases involving sexual violence, particularly child rape

The International Covenant on Civil and Political Rights (1976), or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987) do not explicitly abolish the death penalty. However, various international human rights bodies, including the Office of the High Commissioner for Human Rights repeatedly call on India to reduce the number of offences for which the penalty is prescribed and effectively enforce the rights of prisoners on death row. Unfortunately, the judicial discourse on capital sentencing in India has been ridden with inconsistencies and a sheer lack of normative clarity. Rather than building on the framework proposed in Bachan Singh, courts have made death sentencing a crime-centric and judge-centric exercise. Any improvement in this sentencing framework would require courts to go back to Bachan Singh, and fill the loopholes that have arisen due to a convoluted application of mitigating circumstances.


About the Author, Tanishka [2018-23] is pursuing BA LLB (Hons.) at National Law University, Delhi. She is an undergraduate death penalty research fellow with Project 39A. Her interests lie in human rights law, constitutional law, and criminal law.

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