Constitutional Law

Commutation of Death Sentence: Balancing the Scales of Retributive and Restorative Justice

Vanshika Agarwal


Death sentence – an age-old debate – has once again surfaced, particularly due to the reconceptualising judgements of the Supreme Court. Supporters of the death penalty have argued that the sentence is needed to restore justice, befitting it to be the only appropriate punishment for heinous crimes. The opponents claim that alternative punishments are more humane and that underlying the theory of punishment is the purpose of reforming and rehabilitating the offender. The article, through an explanation of restorative and retributive theories of justice, lays down the need to reconcile these theories. It analyses the retributive nature of the death sentence in view of landmark judgements. Finally, the article shows how the judiciary strives to maintain a balanced system of justice even when death sentence prevails.


The Supreme Court in April commuted the death sentence of a man accused of raping and murdering a four-year-old girl to imprisonment for a term of 20 years, holding that “every sinner has a future.” The Court has also initiated a suo motu writ petition to establish guidelines regarding death penalty sentencing. The judicial trends of the Supreme Court for the past year reveal an utmost caution regarding the imposition of the death penalty. Numerous benches of the Court have laid down norms for greater examination of the mitigating factors resulting in no confirmation of the death sentence since 2020. At the same time, sentencing of more than 50 people to death by various trial courts in 2022 alone, mandates the need to examine the necessity of commutation of death sentences to balance restorative and retributive justice.

Part II of the article starts by briefly explaining the criminal justice theories of retributive justice and restorative justice and their need for reconciliation. Part III of the article examines the retributive nature of the death sentence with Part IV marking the shift in Indian Jurisprudential trend of awarding commutation of death sentences as a balancing mechanism in light of its continued legality. Part V concludes the discussion on the topic.

Retributive and Restorative Justice as Theories of Criminal Justice

According to the retributive theory, an offender who has broken the rules or laws deserves to be punished, and the punishment must be proportional to the severity of the transgression in order for justice to be restored.[1] For the return of justice, the punishment is deemed essential and sufficient, with the perpetrator not required to agree to it or express regret for their acts.

Restorative justice is a process in which parties involved in a specific crime come together to decide how to deal with the consequences of the crime and its long-term consequences.  It encompasses a wide range of healing processes, including healing the victims and undoing the harm, as well as healing the offender by raising his or her moral or social self while also repairing communities and restoring social relationships.

While many theorists have held restorative justice to be the antithesis of retributive justice,[2] modern approaches have suggested the reconciliation of these two models. It has been proposed that while offenders should be punished, the goal of such punishment should be restoration.[3] While restoration or reformation of the offender may be the final objective of the punishment, retribution cannot be ignored, particularly in light of heinous offences which require an overt expression of justice. The convergence between both the theories is arrived at by restoring or rehabilitating the offender alongside handing out punitive punishment to ensure justice to the victim. The reconciliation of theories of justice imposes a question as to the validity of the highest form of punishment awarded today- the death sentence.

Nature of Death Sentence and its Validity in India

The death sentence has been upheld and defended based on criminal punishment theories of deterrence, fairness, incapacitation and retribution, among others. It has been opposed because it provides no scope for reformation or rehabilitation of the individual.[4]  In this section, I explore how the judiciary, through Bachan Singh, defended the death penalty based on retributive grounds.

The primary argument for retributive justice in the death penalty is that those offenders that have committed the most abhorrent crimes should be executed based on the grounds that they deserve such a punishment.[5] Any other alternative, including life imprisonment without remiss would-be insufficient punishment.[6] The retributive doctrine’s particular feature boils down to the assertion that offenders should be punished only because they deserve it.[7] Scholars have argued that while people claim to defend capital punishment on the grounds of deterrence, they do so solely because it is a respectable argument based on facts while the underlying reason remains retribution.[8] The review petition was filed recently by the mother of the victim against the Supreme Court’s decision in Mohd. Firoz v. State of Madhya Pradesh is a clear illustration of the retributive need for the death sentence. The mother has argued in the petition that her daughter, who was brutally raped and murdered, also had a right over her future which was snatched by the offender and as such, the sentencing policy must do justice to the victim.

In Bachan Singh v. State of Punjab, the prevailing case law, the Supreme Court confirmed the death sentence’s constitutionality and established a sentencing framework for future sentencing courts, helping them in deciding between life imprisonment and the death penalty. Individualised punishment was the centrepiece of this structure, dubbed as the ‘rarest of rare’ framework, which held that the death sentence was to be the exception, with life imprisonment being the rule for heinous offences. According to Bachan Singh, aggravating elements must outweigh mitigating ones in order for a case to be eligible for the death penalty. It further required sentencing judges to prove that the alternative of life imprisonment is ‘unquestionably foreclosed’ in order to reach the threshold of ‘special reasons’ for the sentence.[9]

The Court analysed retributive justice, holding that retribution as ‘just deserts’ continued to be a valid concept to express society’s censure. It distinguished between retribution as vengeance and retribution as ‘just deserts’ rejecting the former and upholding the latter. The retributive theory as ‘just deserts’ is based on the proportionality concept and tries to impose only the amount of punishment that the culprit ‘deserves.’[10] The offender’s deservingness is determined by considerations such as the crime’s heinousness and injury to the victim, as well as the offender’s circumstances, such as age, prior criminal record, relationship with the victim, and so on.

 Hence, death penalty based on the retributive theory of justice has been upheld by the court. However, the very nature of the death sentence goes against the theory of restorative justice, offering no scope for the rehabilitation of the offender. Given the extremity of the death sentence and its inhumane nature, such a form of punishment has been abolished by more than 108 countries. The International Criminal Court, while formulating its statute, limited the highest penalty to life imprisonment, abolishing the use of the death sentence in International Criminal Law, providing scope for reformation and rehabilitation even for those offenders who have committed the gravest crimes of genocide, war crimes and crimes against humanity.[11]  However, while the death penalty continues to be constitutional in India, it becomes necessary to examine the approach used by Courts in determining its validity.

Commutation as a Balancing Mechanism – Recent Judicial Trends

With the constitutionality of the death sentence being at the forefront of public debate, recent years have seen the Supreme Court exercising great caution while confirming the death sentence. In this section, I will highlight the recent judgements of the Supreme Court, which are resetting the judicial opinion on the death sentence with their divergence from the positions taken in earlier cases confirming the same. I aim to trace the shift of the Supreme Court from the stance laid down in Nirbhaya towards arriving at an extremely high threshold for ‘rarest of rare’ evident through its ruling on commutations. Finally, I argue that the commutation approach of the court successfully balances the scales of justice, confirming a middle ground that is in compliance with the principles of criminal justice.

The last executions in India were the simultaneous hanging of the four offenders guilty in the Nirbhaya gang-rape case. The Court had confirmed a death sentence based on the aggravating factors of gang rape, unnatural sex, desertion and the pure viciousness employed while committing these offences. However, it had failed to consider the mitigating factors of the young age of the convicts and the poor socio-economic backgrounds and had opined that given the horrific conduct, the possibility of reformation was not existent. Since then, the Supreme Court has not confirmed the death sentence for any offender giving a plethora of judgements that witness an anti-death penalty stance of the Court by giving more weightage to the mitigating factors than the brutality of the offence.

In Rajendra Pralhadrao Wasnik v. State of Maharashtra, the Court commuted the death sentence of the convict guilty of rape and murder of a minor to life imprisonment without remiss. The Court observed that prior to the imposition of the death penalty, the ‘probability’ and not the possibility that the convict could be rehabilitated and reformed in society must be seriously considered. It held that the prosecution had to show to the Court that there is zero probability of reformation, and even in a case where social reintegration was impossible, longer imprisonment is still valid.

In Mofil Khan v. State of Jharkhand, the review petition judgement of the Court commuted the death sentence to imprisonment for a term of 30 years for the convicts guilty of murdering eight people. The Court opined that it is duty-bound to consider the possibility of reformative of the convict as a mitigating factor, and given the absence of a prior criminal record, disadvantaged socio-economic background and good conduct certificate by the Superintendent, there remained a possibility for reformation.

The Court has stayed the death sentence awarded in the Jai Prakash v. State of Uttarakhand, to a convict guilty of rape and murder of a minor, mandating a psychological evaluation to determine whether the death sentence is the only possible punishment.  Recently, in Mohd. Firoz v. State of Madhya Pradesh, the Court commuted the death sentence on the grounds that a balance has to be drawn between retributive and restorative justice. It observed that the goals of punishment also require that the convict be given a chance to contribute to society upon release through reparation of the damages inflicted by him.

The Court has refused to confirm the death sentence of a convict guilty of brutally raping and murdering his cousin’s minor daughter instead of commuting the sentence to 30 years imprisonment. In this case, the Court analysed the mitigating factors of young age, poor background and lack of criminal record of the convict to conclude that reformation still remained a possibility and, as such death penalty would not be a valid punishment. Further, in another case of minor rape and murder, the Court held that the abhorrent nature of the crime could not be decisive in imposing a death sentence, and mitigating factors must be considered.

While the constitutionality of death penalty continues to be upheld by the Court, the recent judgements pave the way for its abolishment. Till that is awaited, the Court has through its recent decisions, successfully balanced retributive and restorative justices while confirming prison sentences.

First, by commuting death sentences even in cases of brutal rape and murder of children or multiple counts of homicide, the Court has considered the possibility of reformation as one of the most important mitigating factors. The Nirbhaya judgement’s stand on ruling out reformation based on the vicious nature of the crime has been successfully diverged from the Veerandra judgement. This approach of the court to exhaustively consider the reformation of the offender affirms the principles of restorative justice. One may question the restorative nature of the alternatives to death penalty, such as life imprisonment or extended prison sentences where reintegration to society might be impossible or difficult. However, studies have shown that even such sentences provide ample opportunity for reformation and rehabilitation.[12] The goal of the Indian criminal justice system has been reformation and not retribution. The case study of Burail Jail Chandigarh is a prime example of reformation in prisons. It has diversified vocational and educational programs along with extensive work programs allowing prisoners to earn wages while serving sentences. Further, educational programs such as ‘Reformation by Education’ have successfully rehabilitated prisoners. Countries such as Norway have demonstrated the success of reformation and reintegration into society even after long term prison sentences through low recidivism rates.[13] Thus, by commuting death sentence to alternate forms, the courts have successfully incorporated principle of restorative justice.

Second, the retributive aspect of imprisonment has long been recognised by criminologists.[14] By commuting to extensive prison sentences the court does not ignore the retributive theory of justice. In most cases of commutation as seen above, lengthy prison sentences have been awarded as a recognition of the gravity of the offence. Thus, by restraining the imposition of death penalty the court has not foregone the retributive justice.

Extended prison sentences are a hybrid model of restorative and retributive justice. They are retributive in the sense that they provide harsh punitive punishment to the offender, ensuring justice to the victim while providing an opportunity for of reformation the offender. Thus, through commutation, the courts have successfully balanced the scales of retributive and restorative justice. Thus, through commutation the courts have converged these theories to ensure that the principles of natural justice are satisfied.


The theories of retributive justice and restorative justice have to be reconciled to arrive at viable criminal punishment models. The censuring of past behaviour of the offender through punitive sentencing while changing the future behaviour through restorative approaches can be said to be the aim of criminal justice through the balancing of the scales. This approach is, however, negated by the death sentence. The Courts continue even under this looming presence to balance the justices by exercising utmost restraint in awarding capital punishment instead reducing it to other forms. The commutation judgements of the Supreme Court are successfully paving the way forward for the complete abolition of the death sentence. Through the adoption of the highest thresholds to confirm the ‘rarest of the rare’ standard and considering the mere possibility of reformation, the Court has not upheld a single death sentence since the Nirbhaya review petitions of 2020. The examination of the recent commutation judgements shows that while the brutality of the offences has perhaps become more severe, the Court emphasises mitigating factors in the hope of rehabilitation of the offenders. This approach moves toward a more nuanced system of criminal justice in greater conformity with the prevailing International Laws.

[1] Michael Wenzel and others, ‘Retributive and Restorative Justice’ (2008) 32(5) Law and Human Behaviour 389.

[2] Howard Zehr, Retributive Justice, Restorative Justice: New Perspectives in Crime and Justice (MCC US Office of Criminal Justice, 1985).

[3] Jac Armstrong, ‘Rethinking the restorative–retributive dichotomy: is reconciliation possible?’ (2014) 17(3) Contemporary Justice Review 366.

[4] Jack P Gibbs, ‘The Death Penalty, Retribution and Penal Policy’ (1978) 69(3) Journal of Criminal Law and Criminology 293.

[5] James R Acker and others, America’s Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction (4th edn, Carolina Academic Press 1998) 139.

[6] Michael L Radelet and Marian J Borg, ‘The Changing Nature of Death Penalty Debates’ (2000) Annual Review of Sociology 52.

[7]  Jack P Gibbs, ‘The Death Penalty, Retribution and Penal Policy’ (1978) 69(3) Journal of Criminal Law and Criminology 294.

[8] Andrew Oldenquist, ‘Retribution and the Death Penalty’ (2004) 29 University of Dayton Law Review 335.

[9] Anup Surendranath, Neetika Vishwanath, and Preeti Pratishruti Dash, ‘The Enduring Gaps and Errors in Capital Sentencing in India’ (2020) 32 National Law School of India Review 48.

[10] Andrew Von Hirsch, ‘The “Desert” Model for Sentencing: Its Influence, Prospects, and Alternatives’ (2007) 74(2) Soc. Res. 413–34; Michael S Moore, ‘The Moral Worth of Retribution’ in Responsibility, Character, and the Emotions: New Essays in Moral Psychology (CUP 1987).

[11] Dragana Radosavljevic, ‘Restorative Justice under the ICC Penalty Regime’ (2008) 7 Law and Practice of International Courts and Tribunals 239.

[12] Michael L Radelet, ‘The Incremental Retributive Impact of a Death Sentence over Life without Parole’ (2016) 49 University of Michigan Journal of Law Reform 803.

[13] Meagan Denny, ‘Norway’s Prison System: Investigating Recidivism and Reintegration’ (2016) 10 Bridges: A Journal of Student Research 35.

[14] Ezzat A Fattah, ‘Making the Punishment Fit the Crime: The Case of Imprisonment the Problems Inherent in the Use of Imprisonment as a Retributive Sanction’ (1982) 24 Canadian Journal of Criminology 3.

Vanshika Agarwal is a current undergraduate student pursuing a B.A., LL.B. (Hons.) at the West Bengal National University of Juridical Sciences (WBNUJS), Kolkata.