Justice and the Death Penalty: Is it simply a game of chance?

Somyajit Mohanty

Death penalty, as administered and practised in the Indian criminal justice system falls short of  morality by violating the principles of legality as laid down by Fuller.


Lon Fuller offered an analysis of law based on the inner morality of law providing a basic set of eight principles, which he called ‘Principles of Legality’, for the evaluation of law and legal systems.[1] A failure to meet these principles, at least to a reasonable degree, would lead to something which can’t be properly called a legal system at all.[2] One of the eight aspects is the congruency between the rule declared and the official action taken. Thus only by the mere existence of legal rules, a legal system can’t be constituted unless such rules are practically observed by the concerned parties and followed coherently.[3]

In light of these principles, the researcher in this paper shall argue that the application of the sentencing guidelines for infliction of death penalty in India, as laid down by the Supreme Court of India, violates Fuller’s ‘Principles of Legality’. The vagueness, inherent in the law of death penalty, and the arbitrary application of the sentencing guidelines isn’t only limited to violation of the congruency principle but also violates other principles of legality. Throughout the course of this paper, the researcher has analysed and looked into the incongruent and inconsistent application of the law by the Supreme Court of India vis-à-vis the cases decided by it.

The Sentencing Guidelines

Section 354(3) of the Criminal Procedure Code, 1973 [CrPC] provides that in cases where the judges grant death penalty, they have to state ‘special reasons’ regarding granting of such sentence.[4] Due to unforeseeable situations which may arise in the developing Indian society, it is difficult to frame a strict standardized policy for granting of death sentence.

However, the Supreme Court made an attempt towards this, considering the factor that death penalty stands at a higher footing than other punishments, in the sense that it is irreversible. Firstly, in Rajendra Prasad v State of UP,[5] the court held that death penalty is to be awarded only in cases where the existence of such a person is perilous for the social security and justice.[6] The Court then, in light of challenges to the constitutionality of the law of death penalty, propounded a general set of sentencing guidelines to be applied in cases where death penalty could be granted while upholding its constitutionality. The Supreme Court in Bachan Singh v State of Punjab[7] laid down the guidelines to be followed which widened the scope as restricted in Rajendra Prasad’s case. The 5-judge Bench by a majority of 4:1, following up on Jagmohan Singh v State of U.P.,[8] propounded that while considering cases vis-à-vis death sentence, one has to look both at the aggravating circumstances and mitigating circumstances of both the crime and the criminal. The weightage to be given to these circumstances have to be considered relatively on a case to case basis and should not be separately treated.[9]

Thus the court placed importance on both the crime and the criminal and accordingly laid down an inclusive list of aggravating and mitigating circumstances to be followed by the courts and giving a liberal and expansive construction to the concept of mitigating factors in accordance with section 354(3) of the CrPC, 1973. The majority concluded by stating that death sentence “ought not to be awarded save in the rarest of the rare cases when the alternative option is unquestionably foreclosed[10] hence commonly called the ‘rarest of the rare’ doctrine.

However, with the passage of time, the Bachan Singh doctrine which vested the discretion in the judges to determine which case would fall within the category of ‘rarest of rare’ and thereby attract the death penalty turned out to be an arbitrary and capricious exercise of power by the judges and its jurisprudential basis stood on shifting sands.[11]

Death Penalty and Inner Morality

Professor Fuller said that it is the judiciary which has been entrusted with the duty to prevent any sort of discrepancy between the law as declared and the law as practiced. He further stated that when the law itself is judge-made, the essential congruence cannot be impaired by the supreme court of a jurisdiction. When there is a lack of congruence between the judicial action and the statutory law, there are ‘equal damaging departures’ from other principles of legality like no comprehensible general rules, and inconstancy in deciding cases leading to contradictory and wrongful rulings.[12] These principles of legality are especially important for matters dealing with death penalty which requires principled sentencing as the penalty is irreversible in case of wrongful convictions.

The inconsistency and lack of congruence of the sentencing guidelines can be seen in the cases which have been decided after Bachan Singh. The Court in Machhi Singh v State of Punjab[13] enumerated five distinct categories of cases to be considered for the infliction of death penalty and thus widened the scope of imposing death penalty. Even though being a smaller bench than that in Bachan Singh, the categories laid down were crime-centric rather than considering both the aggravating and mitigating circumstances of the crime and criminal.[14] It went against the decision of Bachan Singh to not treat the crime and criminal separately.

The Supreme Court in Rajiv v State of Rajasthan[15] held that the nature and gravity of the crime should only be considered for determining the punishment to be given to the criminal. The same was also evident in Sudam v State of Maharashtra[16] where there was no consideration given to the mitigating circumstances of the criminal. The Supreme Court, in Sangeet v State of Haryana[17] recognized many of these cases which had diverted from the guidelines laid down in Bachan Singh by not considering the mitigating circumstances of the criminal. This diversion becomes a diabolic ruling when the accused, found guilty and sentenced to death, is executed to be later doubted by the Supreme Court itself.[18]

It is no doubt true that the sentencing guidelines for the imposition of death penalty are not even followed by the trial courts in India.[19] The Supreme Court has itself realized the inconsistent application of the ‘rarest of the rare’ doctrine. The Court in Santosh Bariyar[20], while interpreting the ‘rarest of the rare’ doctrine, laid down by Bachan Singh, said that the application of the doctrine by various High Courts and the Supreme Court has been varied and inconsistent. They Court further said that “there is uncertainty in the law of capital sentencing” and the law has been unevenly applied since the time of its formulation. [21] Such was also held by the Court in Swamy Shraddananda (2) v State of Karnataka[22] and in Sangeet case where it was held that the ‘principled sentencing’ of Bachan Singh had now become ‘judge-centric’.[23] The Supreme Court recently, in a worthy dissent of Justice Kurian Joseph noted that the Bachan Singh guidelines are “arbitrarily and freakishly” imposed and death penalty in its practical aspects should be reconsidered and reviewed.[24]

Further, the Law Commission of India in its 262nd Report[25] has recognized the arbitrary and inconsistent application of the Bachan Singh doctrine in light of different cases adjudged by the courts in India, including the Supreme Court, which itself had propounded this doctrine. Recently in a study of the opinion of former Supreme Court judges, most of the judges explicitly acknowledged the arbitrary and inconsistent application of the doctrine and crisis in our criminal justice system, along with wrongful convictions because of the varied interpretation of the doctrine and the brutality of the crime being the dominant consideration amongst most of the judges. The study further claimed that “for a significant number of judges the ‘rarest of the rare’ was based on the categories of offences alone and had little to do with the judicial test requiring the alternative of ‘life imprisonment’ be ‘unquestionably foreclosed’.”[26]

Analysing the judicial trends over the last two decades, it is clear that the Bachan Singh doctrine (judge-made law) . The Supreme Court is itself impairing its own law which violates the principle of legality dealing with congruency between the theory and practice. This is similar to the example Fuller provides in his book where Rex’s administration, even after formulation of rules and satisfying the rest of the principles of legality, still falls short of a valid legal system because of the inconsistency and lack of coherence between the situations decided on the basis of the rules formulated. Further, the other principles of legality are also violated as there has been a failure to articulate reasonably clear general rules with regards to the sentencing guidelines for a punishment which is a class of its own. There has been an inconstancy in decision makings and changes of directions and interpretation of the doctrine is evident from the rulings in Machhi Singh, Rajiv alias Ram Chandra, Khade[27], and various other cases.


Morality and law cannot be separated from each other. All laws have moral content, known as the inner morality of law which forms the core of a legal system. Death penalty, as administered and practised in the Indian criminal justice system falls short of such morality by violating the principles of legality as laid down by Fuller. The dilemma and confusion along with the inherent vagueness with respect to the application of the sentencing guidelines laid down in Bachan Singh and the diverging interpretation given by the Supreme Court itself makes death penalty “a cruel game of chance”.[28] As Justice Potter Stewart noted in Furman v Georgia[29] that Death Penalty is as arbitrary as struck by lightning.

[1] Brian Bix, Jurisprudence: Theory and Context (6th edn., Sweet and Maxwell 2012) 85.

[2] Lon Fuller, The Morality of Law (2nd edn. Yale University Press) 39.

[3] Frank Lovett, ‘Lon Fuller, The Morality of Law’ in The Oxford Handbook of Classics in Contemporary Political Theory (Jacob T. Levy ed., Oxford University Press 2015) 4.

[4] The Criminal Procedure Code, 1973 s 354(3).

[5] Rajendra Prasad v State of U.P. (1979) 3 SCC 646.

[6] ibid at ¶64, 670.

[7] Bachan Singh v State of Punjab (1980) 2 SCC 684.

[8] Jagmohan Singh v State of U.P. (1973) 1 SCC 20.

[9] Bachan Singh n (7) at ¶201, 748.

[10] Bachan Singh n (7) at ¶209, 751.

[11] Amit Bindal and C Raj Kumar, ‘Abolition of Death Penalty in India: Legal, Constitutional and Human Rights Dimensions’ in Confronting Capital Punishment in Asia (Roger Hood and Surya Deva eds, Oxford University Press, 2013).

[12] Fuller n (2) at 82.

[13] Machhi Singh v State of Punjab (1983) 3 SCC 470.

[14] Bachan Singh case was a 5-judge Bench while Machhi Singh case was a 3-Judge Bench.

[15] Rajiv @ Ram Chandra v State of Rajasthan (1996) 2 SCC 175.

[16] Sudam @Rahul Kaniram Jadhav v State of Maharashtra (2011) 7 SCC 125.

[17] Sangeet v State of Haryana (2013) 2 SCC 452.

[18] This was the case of Dhananjoy Chatterjee which was doubted in Shankar Kisanrao Khade v State of Maharashtra (2013) 5 SCC 546. It is especially important to consider this as the judgment was doubted after the execution of the accused and the fact that death penalty is irreversible.

[19] Kunal Ambasta, ‘An Unclear Empericism: A Review of the Death Penalty of India Report’ 13(2) Socio Legal Review 2017 136.

[20] Santosh Satishbhushan Bariyar v State of Maharashtra (2009) 6 SCC 498.

[21] ibid at ¶109-110; Mohd. Farooq Abdul Gafur v. State of Maharashtra (2010) 14 SCC 641.

[22] Swamy Shraddananda (2) v State of Karnataka (2008) 13 SCC 767.

[23] Sangeet n (17) at ¶33.

[24] Channu Lal Verma v State of Chattisgarh (2018) SCC OnLine SC 2570 at ¶26.

[25] Law Commission of India, The Death Penalty (Law Com No. 262, August 2015).

[26] Matters of Judgment, Centre on the Death Penalty (National Law University, Delhi Press 2017).

[27] Shankar Kisanrao Khade v State of Maharashtra (2013) 5 SCC 546.

[28] n (26) at 141.

[29] Furman v Georgia 408 U.S. 238 (1972).

Somyajit Mohanty is a second year student at the National Law School of India University, Bangalore. 

Image Source: Caglecartoons

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