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A recent trend in the evolution of jurisprudence around the death penalty in India may reset judicial thinking around sentencing and have long-term ramifications in the awarding of capital punishment. Over the last six months or so, while dealing with appeals against the confirmation of the death sentence, the Supreme Court of India has examined sentencing methodology from the perspective of mitigating circumstances more closely. The Court has also initiated a suo motu writ petition (criminal) to delve deep into these issues on key aspects surrounding our understanding of death penalty sentencing. As such, it is clear that the present trajectory of judicial thinking will not only reaffirm the fundamentals of the rarest of rare principles but also lead a new wave of thinking in the jurisprudence around capital punishment.

Capital punishment once delivered by the court of sessions (“sentencing court”) is required under law, specifically Chapter 28 of the Code of Criminal Procedure, to be confirmed by the jurisdictional High Court (“confirming court”). The development of case laws on the point of sentencing has emphasized that sentencing cannot be a formality and that the sentencing court must make a genuine effort to hear the accused on the question of sentence. Bachan Singh vs State of Punjab (1980), the leading case on this point, calls for mitigating and aggravating circumstances to be balanced against each other and laid down the principle that the death penalty ought not to be awarded unless the alternative of life imprisonment is “unquestionably foreclosed”. Subsequent cases have developed this position to that of the state (which is the prosecuting agency) having the onus to lead evidence to establish that there is no possibility of reformation of the accused of the sentencing court to impose capital punishment. It is also an equally well-established legal principle that in a sentencing hearing, the accused must necessarily be provided with sufficient opportunity to produce any material that may have bearing on the sentencing exercise. When read in conjunction with the ratio decidendi of the Bachan Singh case, it is incumbent upon the sentencing court and the confirming court to ensure that the question of reform and rehabilitation of a convicted person has been examined in detail for these courts to come to a definitive conclusion that all such options are unquestionably foreclosed.

In spite of such judicial guidance developed over four decades, studies have shown that when a group of former judges was asked what it considered a rarest of rare case, the judges gave personalized, subjective, and divergent explanations. A report by the National Law University Delhi’s Project 39A (earlier known as the “Centre on the Death Penalty”) titled ‘Matters of Judgment’ found that there is no judicial uniformity or consistency when it comes to awarding the death sentence. In the report titled ‘Death Penalty Sentencing in Trial Courts’ (also authored by Project 39A), findings reported from a study of cases involving death sentencing between 2000 and 2015 in Delhi, Maharashtra and Madhya Pradesh have shown that courts have been lax in assessing the aspect of reformation while undertaking the sentencing exercise.