A Capricious Noose: A Comment on the Trial Court Sentencing Order in the December 16 Gang Rape Case
| DOI | 10.1177/2277401720140108 |
| Author | Aparna Chandra |
| Date | 01 August 2014 |
| Published date | 01 August 2014 |
| Subject Matter | Article |
A CAPRICIOUS NOOSE:
A COMMENT ON THE TRIAL COURT
SENTENCING ORDER IN THE DECEMBER
16 GANG RAPE CASE
Aparna Chandra*
The December 16 gang rape in Delhi evoked outrage and protest
across the country and led to far-reaching and much-needed
reform in laws relating to sexual offences. However, in the
aftermath of the incident, the legislature as well as the judiciary has
articulated the need for capital punishment in cases of rape and
murder. In this comment, the author looks at the sentencing order of
the trial court in the December 16 case itself, to point out why this
move is problematic.
I. HANGING IN THE BALANCE: THE RAREST OF RARE STANDARD ............. 125
A. Rarest of Rare: Bachan Singh ........................................................... 125
B. Rarest of Rare Take-two: Machhi Singh ........................................... 126
C. The "Lethal Lottery" ......................................................................... 128
D. Bariyar to the (Failed) Rescue ...........................................................129
E. Gurvail Singh's "Procrustean Cruelty" .............................................. 131
II. STATE V. RAM SINGH: A FLAWED JUDGMENT, A FLAWED
JURISPRUDENCE ...................................................................................... 131
A. Balancing Without a Scale: The Aggravating/ Mitigating
Analysis and the Problems of Judicial Incoherence .......................... 132
B. Death Penalty and Disparate Impact.................................................. 135
C. A Shock to the Community's Conscience:
Public Opinion and the Death Penalty ................................................. 136
D. The Ostrich Move: Deterrence and Retribution ............................... 136
1. Death as Deterrence .................................................................. 137
2. Retribution as Justice ................................................................ 138
i. Violence of the Status Quo............................................................ 138
III. CONCLUSION ........................................................................................... 139
* Assistant Professor of Law, National Law University, Delhi. A previous version of this
The sentencing order of the trial court in the December 16 gang rape
case (State v. Ram Singh and Ors., SC No. 114/2013) highlights the
arbitrariness of the death penalty regime. In addition, the reasoning in the
judgment raises questions about the theoretical rationales for awarding the
death penalty. In this piece, I make and substantiate these claims by first
describing the broad contours of, and debates within, India's death penalty
jurisprudence. I then analyze the sentencing order in Ram Singh and argue
that not only was the legal reasoning in the verdict flawed, but that the
sentencing order serves as a window to larger concerns with the death
penalty itself.
I. HANGING IN THE BALANCE: THE RAREST OF RARE STANDARD
Let me start with the legal landscape in which the question of the death
penalty in Ram Singh came to be decided. Though Bachan Singh v. State of
1
Punjab was neither the first nor the last case where the constitutionality of
the death penalty was challenged, it remains the controlling precedent on
the issue and is the starting point of this analysis.
A. Rarest of Rare: Bachan Singh
In Bachan Singh the constitutionality of the death penalty was
challenged on both substantive and procedural grounds. A 5-judge bench of
the Supreme Court rejected the substantive challenge but was concerned
about the procedural challenge that the sentencing regime under Section
354(3) invests courts with "unguided and untrammeled discretion and
2
allows death sentence to be arbitrarily or freakishly imposed." The Court
reconciled the continuation of the death penalty with the potential for its
arbitrary use by walking the tightrope between too much judicial discretion
on the one hand and too little on the other, both of which could lead to
arbitrariness and unfairness in sentencing.
comment appeared in Aparna Chandra, A Capricious Noose - An Analysis of the December
16 Gan g Rape Judg ment, BAR AND BENCH (Sept . 25, 2013 , 16:02 PM) ,
http://barandben ch.com/content/212 /capricious-noose- analysis-decembe r-16-gang-rape-
verdict#.U_zFBPmSx8E
1A.I.R. 1980 SC 898.
2Bachan Singh, id. at ¶17.
125
2014] A Capricious Noose
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