The Enduring Gaps and Errors in Capital Sentencing in India

In the article titled The enduring gaps and errors in capital sentencing in India’ [32(1) National Law School of India Review (NLSIR) 2020], we revisit dominant narratives about capital sentencing in India. A large part of the concern with capital sentencing has been that the sentencing framework in Bachan Singh v. State of Punjab has been arbitrarily and inconsistently applied. In this paper, we interrogate that narrative and argue that the source of these concerns lies within the Bachan Singh framework itself, with its many substantive and procedural gaps. It is further argued that these gaps within Bachan Singh have contributed to its distortion by subsequent decisions that have amplified concerns of inconsistent and arbitrary application. By identifying procedural and substantive fault lines in Bachan Singh, we also argue that the capital sentencing framework has suffered a near-complete collapse.

‘Rarest of rare’ framework

Bachan Singh was preceded by the amendment to the Code of Criminal Procedure (CrPC) in 1973 which altered the status of the death sentence  from being the default punishment to the exception, requiring ‘special reasons’ for its imposition. In order to guide judicial discretion available to judges to decide between life imprisonment and the death sentence, Bachan Singh gave meaning to ‘special reasons’ by laying down an individualised death penalty sentencing framework with mitigating circumstances at its core. The framework requires sentencing judges to weigh aggravating and mitigating circumstances relating to both the offence and the offender. It also requires judges to consider the alternative option of life imprisonment and impose the death sentence only if life imprisonment is unquestionably foreclosed. However, the framework is ambiguous with little clarity on crucial normative, substantive, and procedural aspects that have had a devastating impact on the capital sentencing jurisprudence.

The following gaps identified within the Bachan Singh framework receive attention in the paper:

Relevance of mitigating factors

While Bachan Singh provides an indicative, not exhaustive, list of aggravating and mitigating circumstances, it does not clarify why these factors are relevant in a sentencing hearing. Mitigating circumstances provide insight into an individual’s historical, social, biological, and psychological context and enable courts to understand the implication of these life experiences on the offender while deciding the quantum of punishment. However, the absence of an underlying normative understanding of mitigation and its role in sentencing leaves the field open for judges to arbitrarily discard sentencing factors, or not accord appropriate weight to those factors. Resultantly, subsequent judgments of the Supreme Court have given a go-by to mitigating circumstances.

Onus to produce sentencing material

Bachan Singh also does not specify how mitigating circumstances should be produced before sentencing courts. Aggravating factors of the crime available from case files and courts have ready access to the same. On the other hand, mitigating circumstances can only be gathered from repeated personal meetings with the offender, their family and members of their community, failing which, courts cannot have an accurate understanding of the individual before them. As Bachan Singh has not placed this duty on any stakeholder, courts have also gone on to impose death sentences by taking into consideration only readily available circumstances of the crime. For instance, in Khushwinder Singh v. State of Punjab, the Supreme Court confirmed the death sentence imposed on the accused, while acknowledging that the defence had not presented any mitigating material before the court. In Mukesh v. State and Bharat Singh v. State of NCT of Delhi, courts have played an active role in eliciting mitigating evidence. These cases demonstrate the need for a coherent and consistent understanding of the role of the defence in presenting mitigating circumstances.

Evidentiary standards in sentencing

Bachan Singh provides no guidance on the standard of proof that is to be used for considering sentencing materials. Different commonwealth nations have different standards of proof for sentencing evidence, and the Supreme Court of India, in Santa Singh, suggested that affidavits could be used to place a wide variety of material (distinguished from ‘evidence’) that have a bearing on sentence. It clarified that if the parties disagree on the veracity of the materials, then evidence can be led as per the requirements of the law of evidence. This was also followed in Dagdu v. Maharashtra and Mukesh v. State. Although sentencing submissions before Indian courts are mostly perfunctory, questions of reformation hold out the potential for very significant evidentiary concerns, which have remained unaddressed by Bachan Singh.

Procedural errors in sentencing

Bachan Singh does not express its position on constitutional and due process thresholds for sentencing hearings. This lack of clarity has permitted appellate courts to adopt divergent approaches when sentencing hearings are found deficient at trial. For instance, lack of clarity on the issue of same day sentencing has enabled subsequent cases to take contradictory positions,  with some cases declaring it mandatory and others stating that it can be remedied as long as the accused is given an opportunity to be heard. Similarly, in case of deficient hearings, while one line of cases has directed the remand of the case for re-trial, another set of appellate courts has taken it upon themselves to cure sentencing defects.

Weighing aggravating and mitigating circumstances

Bachan Singh does not provide any real guidance to sentencing courts on weighing aggravating and mitigating factors. The only guidance available in the judgment is that mitigating factors must receive a ‘liberal and expansive’ reading, which subsequent courts have found easy to ignore. For example, in Krishnappa , the Supreme Court held that socioeconomic status, religion, race, caste, or creed of the accused or the victim are irrelevant considerations in sentencing policy. The problem is further exacerbated by poor quality of sentencing material presented by the defence and lack of engagement on meaningful fair trial rights during sentencing.

Considering the alternative of life imprisonment

While Bachan Singh held that the death penalty could be imposed only when the alternative option of life imprisonment was ‘unquestionably foreclosed’ (Bachan Singh, Para. 209), there is no guidance in the judgment on the manner in which this determination is to be made. As a result, subsequent judgments have adopted approaches that are incompatible with Bachan Singh. To bring the jurisprudence in line with the framework of Bachan Singh, the Supreme Court in Santoshkumar Bariyar interpreted the question of life imprisonment within the context of reformation and clarified that ‘life imprisonment can be said to be completely futile only when the sentencing aim of reformation can be said to be unachievable’. However, Bariyar has been more of an exception than the norm. Far too many judgments of the Supreme Court have gone about making this determination by relying on the nature of the offence to come to the conclusion that the offender is beyond reformation. The determination of probability of reformation is necessarily a question that needs to be asked despite the offence. Using the offence to determine the answer to that question is just a circular argument.

Macchi Singh’s Legacy of Distortion

Significant problems in giving effect to the mandate of s.354(3) CrPC that life imprisonment is the norm and death penalty the exception can also be traced to the judgment in Macchi Singh. In many ways, the 3-judge bench in Macchi Singh turned the requirement laid down in Bachan Singh on its head. While Bachan Singh said the requirement was to show that ‘alternative option of life imprisonment was ‘unquestionably foreclosed’, Macchi Singh almost reversed that standard by saying that death can be imposed ‘only when life imprisonment appears to be an altogether inadequate punishment…’. This position in Macchi Singh has caused sentencing judges to justify the death sentence in specific cases by arguing that life sentences would be inadequate for the crime they are concerned with. In altering the standard, Macchi Singh has contributed in no small measure to making death penalty sentencing crime-centric. The introduction of the five crime-categories in Macchi Singh (in almost direct contravention to Bachan Singh) has taken a life of its own with many death sentences being justified on the grounds that the crime fell into one of these five categories identified in Macchi Singh. However, Macchi Singh’s greatest constitutional sin is perhaps in saying that the ‘collective conscience’ being shocked is a relevant factor for sentencing judges to consider.

Future directions for India’s capital sentencing framework

The decision in Bachan Singh was marked by the spirit of individualised justice by its emphasis on giving liberal and expansive construction to mitigating circumstances. However, the doctrinal and normative concerns afflicting the framework enabled future benches of the Supreme Court to disfigure it by offering varied and misguided interpretations, some of which go against the very grain of Bachan Singh. Forty years since its origin, the normative and procedural gaps in the original framework have had a significant role to play in its distortion.

The capital sentencing framework as it stands today raises concerns about our commitment to the rule of law and poses a serious threat to the right to fair trial of the accused. Any attempts to repair the broken nature of capital sentencing in India must necessarily involve addressing the glaring normative, substantive and procedural deficiencies.

(The authors are with Project 39A, National Law University, Delhi. The article is based on a larger study on death penalty sentencing in trial courts of Maharashtra, Madhya Pradesh and Delhi between 2000-2015. The core team of the study comprised the authors and Mr. Rahul Raman.)

Neetika Vishwanath

Neetika is a lawyer and member of the Executive Steering Committee at Project 39A, National Law University, Delhi. She heads Project 39A's work on sentencing, torture and communications. Her research interests include issues of criminal justice, gender and the law, feminist legal studies and the sociology of law.

Preeti Pratishruti Dash

Preeti Pratishruti Dash is a Research Associate at Project 39A, National Law University, Delhi. Her areas of interest include the death penalty, sentencing and gender-based crimes.

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