ABSTRACT
Since 2013, India has seen a consistent legislative expansion of the death penalty for sexual offences including the introduction of the death penalty for non-homicidal child rape. However, the death penalty remains a discretionary and exceptional punishment in law and life imprisonment is the default sentence for capital crimes. In exercising sentencing discretion, the Constitution bench of the Supreme Court of India in Bachan Singh vs State of Punjab (1980) mandates that judges should fulfill two objectives: undertake individualised sentencing by considering the circumstances of the crime and the offender; and if imposing the death penalty, exceptionalise it by demonstrating that the default punishment of life imprisonment is unquestionably foreclosed. Through an empirical content analysis of 85 trial court sentencing orders that resulted in 97 death sentences for child rapes, this paper assesses the effectiveness of these orders in meeting the aforementioned objectives. 68 of the 85 sentencing orders resulted in the death penalty for homicidal child rape in three Indian states including Maharashtra, Madhya Pradesh, and Uttar Pradesh between 2016 and 2021. The remaining 17 orders are in relation to death sentences imposed for non-homicidal child rapes across India since its enforcement as a capital offence in 2018. The analysis reveals that trial judges rely on a typology of retributivist, utilitarian and institutional justifications to impose the death penalty in a manner that these justifications can be applied to all death eligible child rape cases. While the lack of individualisation and the failure to consider the option of life imprisonment is not unique to child rape capital cases in India’s trial courts, I rely on the data to argue that the capital sentencing crisis is more acute in child rape cases by the virtue of the crime category. In light of these findings, I discuss what consistency should look like in the Indian capital sentencing context and identify components that should be a part of a sentencing order that imposes the death penalty. Finally, I analyse both the relevance and limitations of changes in the formal law.
This article first appeared in Criminal Law Forum and can be accessed here.