Penological Justifications as Sentencing Factors in Death Penalty Sentencing

AuthorPreeti Pratishruti Dash,Anup Surendranath,Neetika Vishwanath
Date01 December 2019
Publication Date01 December 2019
DOI10.1177/2277401720972852
SubjectArticles
Article
Journal of National
Law University Delhi
6(2) 107–125, 2020
© 2021 National Law
University Delhi
Reprints and permissions:
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DOI: 10.1177/2277401720972852
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1 Project 39A, National Law University, Delhi, New Delhi, Delhi, India.
Corresponding author:
Anup Surendranath, Project 39A, National Law University, Delhi, Sector 14, Dwarka, New Delhi, Delhi
110078, India.
E-mail: anup.surendranath@nludelhi.ac .in
Penological Justifications
as Sentencing Factors
in Death Penalty
Sentencing
Anup Surendranath1, Neetika Vishwanath1 and
Preeti Pratishruti Dash1
Abstract
When the Supreme Court of India upheld the constitutionality of the death
penalty in Bachan Singh v. State of Punjab in 1980, it also laid down a sentencing
framework for subsequent sentencing courts, guiding them in deciding between
life imprisonment and the death penalty. This framework, popularly known as the
‘rarest of rare’ framework, was focused on individualised punishment. However,
subsequent judgments have strayed away from Bachan Singh’s core framework,
and the use of penological justifications as sentencing factors has contributed
significantly to this deviation. This article argues that it is not within the mandate of
sentencing judges to invoke penological theories as separate sentencing factors in
individual cases when deciding between life imprisonment and the death sentence.
The article begins by distinguishing between the penological justifications used to
retain the death penalty in Bachan Singh and those underlying the sentencing
framework developed in the judgment. It then examines subsequent judgments
to trace the manner in which the capital sentencing framework was shaped to
be crime-centric through the use of penological ideas like ‘collective conscience’
and deterrence. Examining the implications of penological justifications occupying
a dominant place in death penalty sentencing, the article examines the broader
concerns about the lack of clarity with sentencing goals. The failure in individual
cases to distinguish between penological justifications as sentencing factors
determining punishment, on the one hand, and viewing them as consequences
arising out of an individualised sentencing process, on the other, lies at the core
of the critique in this article.
108 Journal of National Law University Delhi 6(2)
Keywords
Capital sentencing, death penalty, Bachan Singh, Machhi Singh, deterrence, retribution,
incapacitation, proportionality, collective conscience, Penological Justifications
Introduction
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.

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