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Approach To The Death Penalty


  • The Supreme Court recently referred issues concerning procedural norms for imposing the death penalty to a larger Bench.
  • The intervention is viewed as a significant step toward closing gaps in the way trial courts award the death penalty.
  • This current trajectory of judicial thought will reaffirm the fundamentals of the rarest of rare principles and usher in a new wave of thinking in capital punishment jurisprudence.


GS Paper 2: Important aspects of governance, transparency and accountability, e-governance- applications, models, successes, limitations, and potential; citizens charters, transparency & accountability and institutional and other measures.

Mains Question

According to some, “capital punishment provides neither justice nor deterrence against any crime.” Do you concur? Justify your response. (250 Words)


  • The Supreme Court has initiated a suo motu writ petition (criminal) to delve deeply into the issues surrounding key aspects of death penalty sentencing.
  • The court is also considering developing a uniform policy in the form of sentencing guidelines.

SC’s most recent observations

  • A three-judge Bench comprised of Chief Justice of India (CJI) U U Lalit and two other Justices observed that there are conflicting judgments on when and how the sentencing hearing must take place, and referred the matter to a five-judge Constitution Bench.
  • This Supreme Court order, which refers the case to a larger bench, also lists social milieu, age, educational levels, trauma earlier in life, family circumstances, psychological evaluation of a convict, and post-conviction behaviour as relevant circumstances that should be considered at the sentencing hearing.

Concerning Capital Punishment

  • Capital punishment, also known as the death penalty, is the execution of an offender sentenced to death by a court of law after being convicted of a criminal offence.
  • It is the most severe penalty that can be imposed on an offender as an effective deterrent for the most heinous crimes.
  • In India, capital punishment has been reserved for the most heinous of offences, such as Section 121 (taking up arms against the state) and Section 302 (murder), among others, of the Indian Penal Code (IPC) 1860.

Decisions Concerning Capital Punishment

  • Section 235 of the Code of Criminal Procedure (CrPC): It requires a judge to hear the accused on the question of sentence after conviction, known as a “sentencing hearing,” and then pass sentence on him in accordance with the law.
    • As stated below, this position was upheld in the Bachan Singh case and restated in the Mithu case.
  • Bachan Singh Case v State of Punjab‘: In 1980, the Supreme Court upheld the constitutionality of the death penalty on the condition that it be applied only in the “rarest of the rare” cases.
    • Most importantly, the ruling stated that a separate sentencing hearing would be held in order to persuade a judge that the death penalty was not necessary.
    • “Rarest of the Rare Cases”: When a murder is committed in such a brutal, ridiculous, diabolical, revolting, or reprehensible manner that it arouses the community’s intense and extreme indignation (anger).
  • Mithu case: This position was reiterated in several subsequent rulings, including ‘Mithu v State of Punjab,’ a 1982 ruling that struck down mandatory death sentences as infringing on an accused’s right to be heard before sentencing.
  • Mofil Khan vs. State of Jharkhand (2021): In this case, the Supreme Court ruled that “the State is under a duty to procure evidence to establish that the accused has no possibility of reformation and rehabilitation.”
  • Dattaraya case: In the 2020 ruling ‘Dattaraya v State of Maharashtra,’ 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 stated that for a constructive hearing under Section 235(2) of the CrPC, the accused should be specifically informed that the court intends to impose the death penalty.
    • By presenting mitigating circumstances to the Court, the accused will be able to make an effective representation against the death penalty. This, however, has not occurred.
    • The bench also noted that the trial court made no attempt to elicit relevant facts and did not provide the petitioner with an opportunity to file an affidavit putting on record mitigating factors, denying the petitioner an effective hearing.

Different points of view

  • Conflicting rulings on separate hearings: At least three smaller Bench decisions have held that, while a separate sentencing hearing is unconstitutional, it can be held on the same day as the conviction.
    • On the other hand, recent three-judge decisions have ruled that same-day sentencing in capital cases violates natural justice principles.
  • Data from the same-day sentencing hearing: According to a 2020 study by Project 39A, a criminal reforms advocacy group at the National Law University in Delhi, sentencing hearings occurred on the same day as the pronouncement of guilt in 44% of the cases studied in Delhi, Maharashtra, and Madhya Pradesh.

What should an adequate sentencing hearing look like?

  • The following are noted in the chain of judgments on sentencing hearings:
    • Before passing the death penalty, the accused should be given a “meaningful, real, and effective hearing” in which they can “adduce (cite) material relevant to the question of sentencing.”
  • However, this cannot occur on the same day as the conviction. This is because the judge must consider not only the factors that necessitate the harshest sentence, but also the mitigating circumstances.

What are mitigating factors?

  • Definition: Mitigating circumstances are arguments that accused people can use to avoid death sentences.
    • These circumstances could include mental health issues, childhood trauma, and a lack of a prior criminal record, among other factors that could lead to a reduced sentence.
    • These are intended to mitigate the severity or culpability of a criminal act.
  • In May 2022, while hearing appeals against the confirmation of the death sentence, the Supreme Court examined sentencing methodology more closely from the standpoint of mitigating circumstances.
  • ‘Manoj & others v. State of Madhya Pradesh’: The Supreme Court recognised the arbitrariness and subjective patterns in death penalty awarding.
    • Studies also show that the death penalty is mostly given to the poor, minorities, and scheduled castes and tribes.
  • ‘Machhi Singh and Others vs. State of Punjab’: This 1983 decision introduced the concept of “collective conscience” into the capital sentencing framework and established five categories in which the community would “expect the holders of judicial power to impose death sentence, because collective conscience was sufficiently outraged.”
    • It was noted in the background that the death penalty sentence is largely determined by the crime in question, rather than the circumstances of the accused.
  • Statistics citing collective conscience: According to Project 39A’s 2020 study, 72% of all cases in which Delhi trial courts handed down the death penalty between 2000 and 2015 cited “collective conscience of the society” as an influencing factor.
    • The study also discovered that in 63 of the 112 cases where collective conscience was a factor influencing court decisions, no other mitigating factor was considered.

What comes next?

  • A five-judge Constitution Bench will effectively settle the debate over whether trial courts’ fast-tracked hearings, which award death sentences in some cases in a matter of days, are legally justifiable.
  • The ruling could also be a significant step toward raising the bar for death sentences even higher.

February 2024