The Supreme Court on Friday upheld the death sentences awarded to four men in the Delhi gang rape case of December 2012. The brutal rape and eventual death of the victim had led to mass protests across India, forcing the government to amend criminal laws so as to widen the definition of rape.

Despite the brutality of the crime, every time a person is sentenced to death, many ethical questions are raised. Should civilised societies allow the death penalty? Can the state, which has the power to take away the liberty of a person who violates the law, be conferred with the power to take away life as well? Is the death penalty in collision with the very idea of a reformative criminal justice system?

Related to all this is another key question: are the courts consistent in awarding death penalty?

What makes a case the “rarest of rare”, the standard set by the Supreme Court for awarding death sentence? If consistency is absent in awarding death penalty, should it be resorted to at all then given that there is obviously no way to rectify the order once a person is hanged?

The primary case law that guides the awarding of death penalty in India is Bachan Singh vs State of Punjab. In its verdict, the Supreme Court said that aggravating and mitigating circumstances should be tabulated before a convict is sent to the gallows. Under mitigating circumstances, the court listed the following:

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is too young or too old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence upon release as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The state shall by evidence prove that the accused does not satisfy conditions (3) and (4).

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.  

Now, let us see how the apex court itself has adhered to these guidelines in various cases over the years.

Delhi case

In the Delhi rape of 2012, there were six accused: five adults and one juvenile. One off the adult accused, Ram Singh, allegedly hung himself in jail in 2013. After the High Court confirmed their death sentence, the other four went on appeal to the Supreme Court in 2015.

Two of the key mitigating factors that courts have cited against awarding death sentence is age and socio-economic background. As the Bachan Singh judgement clearly laid out, if the accused is young, death penalty is best avoided. This is because the younger the person, the more time there is for reform.

In the Delhi case, the four adult accused were all under 30 when they committed the crime. Further, as argued by the accused before the court, all four came from a weaker socio-economic background with family members dependent on them. However, the Supreme Court pointed to the abhorrent nature of the crime, which is a factor in testing the “rarest of rare” cases, the impeccable evidence produced against them, and the manner in which the crime outraged the conscience of the society to uphold their death sentences. In the Bachan Singh case, though, the apex court said that public opinion was extraneous to conviction and sentencing, a reasoning that was cited in many subsequent orders.

Also, in the past, the court has been lenient on similar or arguably more abhorrent cases.

Suresh vs State of Maharashtra

In 1999, a four-year-old girl was raped and murdered by a man named Suresh. The trial court sentenced him to death. But the Bombay High Court was not satisfied with the evidence produced and set aside the conviction. The matter went to the Supreme Court, which, despite the lack of mitigating factors, decided not to award death sentence as the accused had been acquitted by the High Court.

The court had this to say while sentencing Suresh to life in prison:

“Regarding sentence we would have concurred with the Sessions Court’s view that the extreme penalty of death can be chosen for such a crime, but as the accused was once acquitted by the High Court we refrain from imposing that extreme penalty in spite of the fact that this case is perilously near the region of “rarest of the rare cases” envisaged by the Constitution Bench in Bachan Singh v State of Punjab, [1980] 2 SCC 684. However, the lesser option is not unquestionably foreclosed and so we alter the sentence, in regard to the offence under Section 302 IPC, to imprisonment for life.” 

Mohinder Singh vs State of Punjab

Mohinder Singh was charged with murdering his wife and daughter. He committed the crime while out on parole after having been sentenced to 12 years rigorous imprisonment for raping his own daughter, the one he later killed.

Both the trial court and the High Court sentenced him to death, but the Supreme Court commuted his sentence to life imprisonment. The reason given was that Singh had been frustrated by domestic issues with his wife. More important, it said:

“Moreover, the probability of the offender’s rehabilitation and reformation is not foreclosed in this case. Likewise, we can see from the affidavit filed by the sister of the accused that his family has not totally renounced him as yet.” 

Singh was much older than the accused in the Nirbhaya case. Further, unlike Singh, the Nirbhaya case accused did not have serious criminal records.

Amrit Singh vs State of Punjab

In this 2006 case, an 8-year-old girl was raped and murdered by a 31-year-old man. Despite the gruesome nature of the crime, the Supreme Court decided to commute the death sentence. The court reasoned:

“The manner in which the deceased was raped may be brutal but it could have been a momentary lapse on the part of Appellant, seeing a lonely girl at a secluded place. He had no pre-meditation for commission of the offence. The offence may look a heinous, but under no circumstances, it can be said to be a rarest of rare cases.”  

In the Delhi case too, it was argued that there was no pre-meditation. The accused did not know the victim before that December night.