The year 2022 is a defining moment for the death penalty in India. In September, the Supreme Court decided that a Constitution Bench is required, for the first time since 1980, to address gaps in the sentencing framework for death penalty cases.

In stark contrast, a report by Project 39A, which the authors of this article prepared, found that 2022 also had the highest number of death sentences in a single year since 2000 and the highest death row population in 18 years.

While the efforts of the Supreme Court are laudable, it remains to be seen whether these will be enough to resolve the enormous gaps in death penalty sentencing law and practice.

The Supreme Court, capital sentencing

The Supreme Court laid down the current framework for sentencing in death penalty cases in the case of Bachan Singh vs State of Punjab in 1980. It required trial courts to look at both the crime and the offender’s life circumstances – such as their age, family background, socio-economic status – before deciding on the sentence. Furthermore, it held that before a death sentence can be imposed, it is the duty of the state to prove that the convict is beyond reform.

But these guidelines left substantial questions on sentencing unanswered. What kind of evidence must be collected on the circumstances of the offender? Who can or should bring such evidence before the court? How should a court weigh life circumstances as against the crime to decide on the ultimate sentence that must be imposed?

These gaps have left judges without any meaningful guidance in the sentencing process, leading to inconsistent and problematic approaches.

For instance, Project 39A’s research showed that circumstances of the offender were not considered in 66.7% of trial court cases across India that resulted in 306 death sentences between 2018 and 2020. Therefore, given the lack of guidance from the Supreme Court on whose duty it is to collect these circumstances, neither defence lawyers nor courts collected or called for this information.

While the Supreme Court has noted concerns with the sentencing framework and its implementation over the years, the past two years have represented a significant shift. In 2021, the Supreme Court did not confirm a single death sentence, which was a first.

In May, a bench comprising former Chief Justice of India UU Lalit, Justices R Bhat and Bela Trivedi introduced important changes to the sentencing processes, passing several orders calling for jail conduct and psychiatric evaluation reports of death row prisoners before arguments on sentence.

The bench, in the case of Manoj vs State of Madhya Pradesh, issued guidelines directing trial courts to elicit jail conduct and mental health reports of the offender for sentencing in death penalty cases.

This reconsideration of the sentencing process culminated in the referral to a Constitution Bench to resolve gaps in the current sentencing framework for death penalty cases.

However, although the question before the five-judge bench is on the components of a “real, meaningful and effective sentencing hearing”, in its referral, the Supreme Court has placed greater focus on the duration for the sentencing process than other elements of a sentencing hearing.

The Court simply highlights the lack of a uniform sentencing framework, clubbing a range of concerns with the sentencing process in order to sidestep the task of articulating specific questions for the Constitution Bench to consider.

Trial courts and the death penalty

But what is the reality of death penalty sentencing before the trial courts of India? While appellate courts commute a majority of death penalty cases they hear, trial courts continue to impose death sentences at alarming rates, reaching a new peak last year at 165.

In the same year that the Supreme Court instituted guidelines on sentencing materials, all but two of the trial court death sentences were imposed without the prosecution mentioning any evidence on reformation and without information on the offender’s life circumstances.

Our research shows that trial courts called for evidence of an offender’s life circumstances for just one death sentence between 2018-’20. The Supreme Court itself in May made note of the poor information collected and considered by trial courts before a person is sentenced to death, but much of this is a result of the Court’s own lack of clarity and confusion on sentencing law and processes.

Beyond the data, stories of trial court death sentences reveal bigger concerns that processes followed. In Gujarat, a trial court in February last year sentenced 38 people to death in a single case pertaining to the 2008 Ahmedabad blasts with barely any attempt to individualise the sentence.

In another case, which was sent back by the Supreme Court to the trial court for violating fair trial rights, the prisoner was sentenced to death again with no acknowledgement of the range of violations highlighted by the Supreme Court. In a particularly egregious trend, trial courts even went as far as imposing 11 death sentences for offences which were not punishable with death under the law.

Missed opportunity, or futile exercise?

The scale of the problem at the trial court level highlights the urgency and necessity of reforms to prevent blatant violations that result in the undeserved sentencing of persons to death.

The Supreme Court’s Constitution Bench needs to address the unanswered questions that remain pending since 1980, creating a process for sentencing that is clear and detailed in a manner that can prevent such poor decision-making by trial courts and ensure the equal treatment of offenders at the sentencing stage. The assembling of a five-judge bench represents the appropriate next step to lay down the law decisively on such issues.

But the Court’s referral order focuses disproportionately on the issue of duration of sentencing, attempting to resolve the validity of sentencing on the same day as conviction. While this is an issue that ought to be corrected, ensuring longer durations for sentencing in and of itself will not repair the gaping holes in the death penalty sentencing framework.

A detailed review of trial court death sentences by Project 39A showed that even when trial courts took over a week for the sentencing process, 30% of such death sentences were imposed without any mention of life circumstances of the accused.

Even if same day sentencing is declared invalid, it will be meaningless if the Supreme Court does not clarify the kind of evidence that must be collected, by whom, as well as how such evidence can be presented and evaluated by a court. In its focus on duration, which is the tip of the iceberg of sentencing issues, the Court fails to recognise the deeper rot of the sentencing process that needs to be corrected.

All of this raises the more difficult question of whether the Supreme Court is best placed to resolve these concerns. Indeed, in 1980, the Court in the case of Bachan Singh had been wary about setting out specific law – opting instead for “broad guidelines” – to avoid overstepping its limits as a judicial organ.

An effective sentencing process requires creating an entirely new system of “mitigation investigators” who can effectively compile and present information relevant to the sentencing process, which requires investment of resources and essentially the creation of a new organisation.

With the state’s failure to make any attempt to build a system for such processes since 1980, it is worth asking whether the Supreme Court can uphold the death penalty in the absence of a clear law and institution that guides the process of its imposition.

Gale Andrew is Senior Associate (Legal Aid) and Lakshmi Menon is Associate (Sentencing) at Project 39A, National Law University, Delhi.

Also read: The SC’s examination of death sentencing is the first step to a justice system aimed at redemption