Penological Justifications as Sentencing Factors in Death Penalty Sentencing

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.

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“…For example, it is the poorest and most marginalised litigants who are unable to hire a lawyer to represent them or find the money for surety (bail) and face much higher chances of detention, incarceration, destitution and lack of social support. Studies on undertrials [16], those convicted and under sentence of death have demonstrated that most of them come from the poorest, the scheduled castes, scheduled tribes, nomadic tribes, and the Muslim community, since they face a heightened bias in society. Undertrials often spend more time in jail before trial than they would have even if convicted.…”