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Death Penalty Sentencing in Trial Courts

Topics Covered: Separation of powers between various organs dispute redressal mechanisms and institutions.

Death Penalty Sentencing in Trial Courts

What to study?

For Prelims and Mains: Capital punishment, how is it determined, appeals and concerns, measures suggested by various committees.

 Context: It is a report by research organization Project 39A of National Law University, Delhi.

In the study, the organisation analysed 215 judgments from three states, 43 from Delhi, 90 from Maharashtra and 82 from Madhya Pradesh, in which trial courts imposed death sentence between 2000 and 2015.

Key findings of the study:

  • The shock and impact of a crime on the collective conscience of society was a major reason cited by trial courts in Delhi while imposing death sentence on convicts.
  • The study also revealed blatant non-compliance by the trial courts with the sentencing framework laid down by the Supreme Court in its 1980 judgment in Bachan Singh v. State of Punjab, where a Constitution bench of the Supreme Court was called upon to decide the constitutional validity of the capital punishment.
  • Out of the 43 cases in Delhi in which death sentence was handed down between 2000 and 2015, trial courts invoked the impact of the crime on society’s collective conscience in 31 cases (72%) as grounds to send convicts to death row.
  • In Madhya Pradesh, the said ground was used in 43% cases (35 out of 82) while in Maharashtra the figure stood at 51% (46 of 90 cases).

What is collective conscience?

Collective consciousness (sometimes collective conscience or conscious) is a fundamental sociological concept that refers to the set of shared beliefs, ideas, attitudes, and knowledge that are common to a social group or society.

Evolution of collective conscience:

‘Collective conscience of society’ as a ground to justify death penalty was first used by the Supreme Court in the 1983 judgment of Machhi Singh v. State of Punjab. In that case, the court held that when “collective conscience of society is shocked, it will expect the holders of the judicial power centre to inflict death penalty”.

It was, however, most famously used by the top court in its 2005 judgment in the Parliament attack case in which it awarded capital punishment to convict, Afzal Guru.

Collective conscience found its most recent endorsement in the 2017 judgment of the Supreme Court in the December 2012 Delhi gang rape case of Mukesh v. State of NCT of Delhi.

How should the Courts decide on capital punishment impositions?

In the case of Bachan Singh, the Supreme Court formulated a sentencing framework to be followed for imposing death penalty.

  • It required the weighing of aggravating and mitigating circumstances relating to both the circumstances of the offence and the offender, to decide whether a person should be sentenced to death or given life imprisonment.
  • According to the Bachan Singh judgment, for a case to be eligible for the death sentence, the aggravating circumstances must outweigh the mitigating circumstances.

What the study suggests?

Collective conscience makes its appearance through the individual conscience of the judge. So, when judges use this phrase, it is really to express what is essentially their own viewpoint, or they have taken it upon themselves to determine “collective consciousness”. Both these positions are entirely self-generated.

  • The most glaring aspect highlighted by Project 39A’s report was regarding the non-consideration of mitigating factors while sentencing accused. As per the report, no mitigating circumstances were mentioned in 42% of death penalty cases (18 of 43 cases) in Delhi. The number was 62% (51 of 82 cases) in Madhya Pradesh and 47% (42 of 90 cases) in Maharashtra.
  • The Bachan Singh judgement recognized the age of the accused as a relevant mitigating circumstance.
  • Another most important aspects of the sentencing framework laid down in the Bachan Singh judgement is to consider whether the alternative punishment of life imprisonment can be “unquestionably foreclosed.” Only then can death penalty be imposed.
  • Despite the same, trial courts in the three states discussed life imprisonment as an alternative only in 26.6% cases before imposing death penalty. It was discussed in 8 out of 43 cases in Delhi, 22 out of 82 cases in MP and 27 out of 90 in Maharashtra. In all cases where it was discussed as an alternative, it was dismissed on the ground of brutality of the crime.

 In essence, this study shows:

That the death penalty sentencing framework has completely collapsed. The utter inconsistency, confusion and arbitrariness in the Supreme Court’s death penalty jurisprudence has had a devastating impact on the sentencing process in the trial courts.


Can the courts allow any kind of public outcry, sense of conscience, sentiment or feeling to even remotely influence their decisions, especially when it is a case of the death sentence? This is even more relevant in the times that we live in, when television and social media bombard us, creating and determining opinion.

Need of the hour:

Our Constitution is based on the principle of justice for the most marginalised, disfranchised, oppressed, unknown, unseen and ignored. This spirit demands that law cannot rely on or be influenced by any delusionary sense or mood of the people. We need in judges a liberal energy and the ability to be creative human beings.

Recommendations by law commission:

The Law Commission in 2015, headed by Justice A P Shah proposed to abolish capital punishments. However, the commission had made the proposal only to non-terrorism cases. According to the commission, India is one among few countries that still carry out executions. The other countries that practice executions include Iran, Iraq, Saudi Arabia, China. By the end of 2014, 98 countries had abolished death penalty.


Prelims Link:

  1. Various benches of Supreme Court.
  2. Law commission- composition, objectives and functions.
  3. Appeals against capital punishment.
  4. President’s pardoning powers.

Mains Link:

What is Collective conscience? How it influences the judgments of courts? Discuss.

Sources: the Hindu.