Approach to death penalty: Why Supreme Court has decided to settle differences among judgments
Sept. 22, 2022


  • The Supreme Court recently referred to a larger Bench, issues relating to procedural norms for imposing the death sentence. The intervention is seen as a major step in plugging gaps in the way in which trial courts award the death sentence.
  • This present trajectory of judicial thinking will reaffirm the fundamentals of the rarest of rare principle and lead a new wave of thinking in the jurisprudence around capital punishment.


  • The SC has initiated a suo motu writ petition (criminal) to delve deep into the issues on key aspects surrounding the understanding of death penalty sentencing.
  • The court is also looking at framing a uniform policy in the form of guidelines for sentencing.

Recent observations of SC

  • A three-judge Bench comprising Chief Justice of India (CJI) U U Lalit and two other Justices observed that there are conflicting judgments on when and how the hearing related to sentencing must take place, and referred the issue to a five-judge Constitution Bench.
  • This order is necessitated due to a difference of opinion and approach amongst various judgments, on the question of whether, after recording conviction for a capital offence, under law, the court is obligated to conduct a separate hearing on the issue of sentence.
  • This SC order referring the issue to a larger bench also lists social milieu, the age, educational levels, trauma earlier in life, family circumstances, psychological evaluation of a convict and post-conviction conduct, as relevant circumstances that should be accounted for at the sentencing hearing.

About Capital Punishment

  • Capital punishment, commonly known as the death penalty, is the execution of an offender sentenced to death after conviction of a criminal offense by a court of law.
  • It is the highest penalty awardable to an offender as an effective deterrent for the worst crimes.
  • Capital punishment in India has been limited to the rarest of rare cases- like Section 121 (taking up arms against the state) and Section 302 (murder) etc. of the Indian Penal Code (IPC) 1860.

Judgments related to Capital Punishment

  • Section 235 of the Code of Criminal Procedure (CrPC) : It requires a judge to hear the accused after conviction on the question of sentence, known a “sentencing hearing” and then pass sentence on him according to law.
    • This position was upheld in Bachan Singh case and restated in Mithu case as mentioned below.
  • Bachan Singh Case v State of Punjab’: In 1980, the Supreme Court upheld the constitutionality of capital punishment on the condition that the punishment will be awarded in the “rarest of the rare” cases.
    • Crucially, the ruling also stressed that a separate hearing related to sentencing would be held, where a judge would be persuaded on why the death sentence need not be awarded.
    • “Rarest of the Rare Cases”: When the murder is committed in an extremely brutal, ridiculous, diabolical, revolting, or reprehensible manner so as to awaken intense and extreme indignation (anger) of the community.
  • Mithu case: This position in Bachan Singh case was reiterated in several subsequent rulings including in ‘Mithu v State of Punjab’, a 1982 ruling that struck down mandatory death sentence as it infringes upon the right of an accused to be heard before sentencing.
  • Mofil Khan vs State of Jharkhand (2021): In this case, SC held that the “the State is under a duty to procure evidence to establish that there is no possibility of reformation and rehabilitation of the accused.

Effective hearing under CrPC

  • Dattaraya case: In ‘Dattaraya v State of Maharashtra’, a 2020 ruling, a three-judge Bench of the Supreme Court commuted the death sentence to life imprisonment on the grounds that an adequate sentencing hearing was not held.
    • The court also noted that for constructive hearing under Section 235(2) of CrPC, the suggestion should specifically be made to the accused that the court intends to impose death penalty.
    • This will enable the accused to make an effective representation against death sentence, by placing mitigating circumstances before the Court. However, this has not been done.
    • The bench also noted that the trial court has made no attempt to elicit relevant facts, nor did give any opportunity to the petitioner to file an affidavit placing on record mitigating factors, hence denying the petitioner an effective hearing.

Contrary viewpoints

  • Conflicting rulings on separate hearing: At least three smaller Bench rulings have held that while a separate sentencing hearing is inviolable, they can be allowed on the same day as the conviction.
    • On the other hand, more recent three-judge decisions have ruled that same-day sentencing in capital offences violate the principles of natural justice.
  • Data on same day sentencing hearing: A 2020 study by Project 39A, a criminal reforms advocacy group in the National Law University, Delhi, found that in 44 per cent of cases it studied in Delhi, Maharashtra, and Madhya Pradesh, sentencing hearings took place on the same day as the pronouncement of guilt.

What is an adequate sentencing hearing like?

  • The chain of judgments on sentencing hearings notes the following:
    • A “meaningful, real and effective hearing” for the accused is advocated before awarding the death sentence, wherein the accused can have an “opportunity to adduce (cite) material relevant for the question of sentencing.”
  • However, this cannot happen on the same day as that of the conviction. This is because the judge is required to consider not just factors that necessitate awarding the highest sentence, but also the mitigating circumstances.

What are mitigating circumstances?

  • Description: Mitigating circumstances are arguments that accused persons can present in their defence to avoid death sentences.
    • These circumstances could include mental health problems, trauma in early life, and lack of a prior criminal record, or other such instances which might be reasons for the judges to pass a reduced sentence.
    • These are meant to lessen the severity or culpability of a criminal act
  • The SC in May 2022, while dealing with appeals against confirmation of the death sentence, has examined sentencing methodology from the perspective of mitigating circumstances more closely.
  • ‘Manoj & others v. State of Madhya Pradesh’: The Supreme Court ruling acknowledged the arbitrariness and subjective patterns in awarding the death sentence.
    • Studies also show that largely underprivileged, minorities, and scheduled castes and tribes are awarded the death sentence.
  • ‘Machhi Singh And Others vs State of Punjab’: This 1983 ruling introduced “collective conscience” into the capital sentencing framework and laid down five categories, wherein the community would “expect the holders of judicial power to impose death sentence, because collective conscience was sufficiently outraged”.
    • This was held in background that death penalty sentence is largely driven by the crime in question and not the circumstances of the accused.
  • Statistics quoting collective conscience : The 2020 study by Project 39A found that 72% of all cases in which Delhi trial courts awarded the death penalty from 2000 to 2015 cited “collective conscience of the society” as an influencing factor.
    • The study also found that of the 112 cases in which collective conscience was a factor impacting the decisions of courts, absolutely no other mitigating factor was considered in 63 cases.

What happens next?

  • A five-judge Constitution Bench will effectively settle the debate on whether the fast-tracked hearings by trial courts awarding death sentences in a matter of days in some cases is legally justifiable. The ruling could also be a crucial step in raising the bar further in awarding the death sentence.