ABSTRACT
The administration of the death penalty in India is in crisis, with over 95% of imposed death sentences not surviving appellate scrutiny. Literature thus far has considered this crisis only considering individualised sentencing, believing it to be at the core of the governing framework laid down by the Supreme Court of India in Bachan Singh v State of Punjab (1980) 2 SCC 684. I argue, however, that Bachan Singh enshrined two values, not one—individualising sentencing, of course, but also an unexplored value I term ‘exceptionalising’ death sentences—and find, upon an empirical assessment of 306 death sentences imposed between 2018 and 2020, that both values have remained unrealised in practice. I also argue, against current literature, that Bachan Singh’s upholding of the constitutionality of the death penalty hinged on the evolution of a framework that would pursue these substantive values, making its success in realising each of them an important constitutional touchstone. The empirical analysis presented in this paper suggests that not only has the framework failed to realise its substantive values, but this failure was also inevitable, baked into the framework by Bachan Singh’s own silences and ambiguities. As I demonstrate, this has generated distortions in the framework that have not only rendered trial court sentencing processes arbitrary but also made them far more disposed towards the death penalty than the ‘rarest of rare’ framework could possibly have envisaged. It is time, then, to look again at the constitutionality of the processes by which Indian courts have been sentencing persons to death.
This article first appeared on Springer and can be accessed here.