108 Journal of National Law University Delhi 6(2)
Capital sentencing, death penalty, Bachan Singh, Machhi Singh, deterrence, retribution,
incapacitation, proportionality, collective conscience, Penological Justifications
In May 1980, a Constitution Bench of the Supreme Court in a 4:1 majority in
Bachan Singh v. State of Punjab1 upheld the constitutionality of the death penalty
and also laid down a sentencing framework for judges to follow when deciding
between life imprisonment and the death penalty. Both aspects of the judgment
were premised on certain penological goals and sought to give effect to the
legislative intent of the 1973 amendments to the Code of Criminal Procedure
(CrPC), which made life imprisonment the norm and death penalty the exception.2
This, for the court, was indicative of the legislative will to do away with retribution,
understood as vengeance, as a legitimate sentencing goal.3 While affirming the
constitutional validity of the death penalty, the court acknowledged the deterrent
and retributive role of having the punishment on the statute book. This, however,
did not imply that the court was prescribing penological goals as sentencing
factors that future judges could use when engaged in an exercise of individualised
sentencing. In fact, the court laid down a sentencing framework with both the
nature of the offence and the individual circumstances of the offender at its
core, which had the goals of proportionality and reformation as its normative
foundations. However, this has been the cause for much confusion in the capital
sentencing jurisprudence in India. In many cases over the last 40 years, the
Supreme Court, rather than undertaking an exercise of individualised sentencing
by adhering to the Bachan Singh framework, has used penological goals as
sentencing factors, with devastating consequences. In using penological goals as
sentencing factors, courts have bypassed the Bachan Singh framework. It is this
problem with capital sentencing in India that is the focus of the present article.
When Bachan Singh upheld the constitutionality of the death penalty and laid
down a framework for subsequent sentencing judges to follow, it attempted to
give meaning to the phrase ‘special reasons’ under Section 354(3) of the CrPC,
1973.4 This framework was meant to guide sentencing judges in discharging
their obligations under Section 354(3) of the CrPC while choosing between
the punishments of life imprisonment and the death penalty.5 The focus of the
1 Bachan Singh v. State of Punjab (1980) 2 S.C. 684 (hereinafter Bachan Singh).
2 An Amendment to the Code of Criminal Procedure (CrPC) in 1973 introduced the legislative
preference for life imprisonment over the death penalty. Section 354(3), CrPC.
3 Bachan Singh, supra note 1, at 721.
4 An amendment to the CrPC in 1973, introduced through Section 354(3), made life imprisonment
the default punishment and death sentence an exception requiring sentencing judges to give ‘special
reasons’ while imposing the death penalty. However, there was no indication as to what these special
reasons could be.
5 Indian Penal Code (IPC) 1860, s 302 (IPC). There are other provisions in the IPC and other
legislations that provide for the death penalty, and Bachan Singh applies to death penalty sentencing
across offences by virtue of the obligations on sentencing judges under s 354(3) of CrPC.