This article reports findings based on non-participant observation during eight weeks of rape trials in a Fast Track Court (FTC) in Lucknow, established exclusively to hold trials of cases involving 'crimes against women'. Research methods included an in-depth study of 15 'disposed off' case files, in-depth semi-structured interviews conducted with 12 lawyers and focus group discussions (FGDs) with police officials held at 15 police stations in Lucknow district. Around 50 per cent of the rape trials were found to be related to the offence of statutory rape in cases of runaway marriages of minors. Another distinct category of cases that came to trial as rape cases were those involving 'breaking of or false promise of marriage'. This article problematises and contests the construction of these categories of cases as 'rape' and argues that it points to a shift and hijack of the rape discourse by patriarchal familial and legal forces.

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.

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