Upholding the fairness of the sentencing process- THE HINDU- 08/02/2020 - MAINS


This article examines the way in which open conclusion and “society’s cry for justice” have played a colossal part within the sentencing prepare at the trial as well as re-appraising levels of the legal, and the suggestions of this on the reasonable trial rights of the convicts.

Bachan Singh v/s State of Punjab

A Structure Seat of the Preeminent Court in Bachan Singh v/s State of Punjab (1980) said, whereas forcing Capital Discipline on the guilty party the courts ought to consider the exasperating and relieving circumstances of the offense and the wrongdoer when choosing the address of punishment.

Aggravating circumstances alludes to variables that increments the seriousness or culpability of a criminal act. Heinous nature of Wrongdoing, brutal Slaughtering of individuals, earlier feelings of the blamed, pre-planned cold blood murder.

A moderating figure is the inverse of an disturbing circumstance, as a moderating calculate gives reasons as to why discipline for a criminal act’s have to be be lessened. Not a pre-planned kill, act of wrongdoing committed in sudden rage and no criminal past of the accused.

Death punishment may well be forced as a last alternative as it were when the court feels it would be tragedy of Equity in case passing punishment isn't awarded. The passing sentence can as it were be forced in extraordinary cases including extraordinary condition.

Trail and High court Judgment in Nirbhaya case

The trial court commented upon the “extreme mental perversion of the accused”, which was “not worthy of human condonation” and also reiterated elements of the crime to highlight their “beastly behaviour”.

The High Court elaborately discussed the exceptional nature of this case given the brutality involved to conclude that expecting society to demand anything other than the death penalty for the convicts would be “unnatural and ludicrous”.

A plain reading of the sentencing orders makes it very clear that the public clamour for “hanging the rapists” made its way into the judicial decision-making.

Irrespective of the brutal nature of the crime, the circumstances of the convicts are crucial to the sentencing exercise and have to inform the punitive outcome.

Recognising these deficiencies in the sentencing hearings by lower courts, the Supreme Court took it upon itself to appreciate mitigating evidence.

The Court allowed defence counsels access to the convicts and directed the defence counsel to file “necessary separate affidavits and documents on mitigating circumstances”.

The evidence on mitigation that was presented before the Court in the form of affidavits included material on the socio-economic circumstances of the convicts, their family background and some information on their previous occupation.

The uncanny similarity between the mitigation affidavits of the defendants is itself a matter of concern, as it does not meaningfully present individual circumstances of the convicts, raising questions about the quality of legal representation.

However, of graver concern is the manner in which the court dismissed these circumstances as irrelevant, given the circumstances of the crime in the case.

Why life imprisonment as an option was not considered?

Confirming the death sentences for all, two concurring opinions remarked that the crime was bound to “shock the collective conscience” and any punishment lesser than the death penalty would “shake the confidence of the public” in the criminal justice system.

After an unreasoned dismissal of individual circumstances of the convicts, the Supreme Court also failed to sufficiently answer why life imprisonment was unquestionably foreclosed.

The Court failed to discharge any of these burdens.

At its core, imposition of death sentence to satisfy “collective conscience” is vengeance couched as retributive justice, captured by the phrase “an eye for an eye”.

Modern penal systems consider this an outmoded concept, and even Bachan Singh had observed that retributive justice means punishment based on blameworthiness of the convict, and cannot be equated to “vindictiveness” (revenge).

However, the judgments in this case indicate a strong influence of collective conscience on the outcome.
In fact, the Supreme Court’s approach suggests that society’s cry for the death penalty justifies the imposition of the death penalty, without adequately dealing with the question of life imprisonment.


The execution of the four convicts after depletion of their legitimate cures may deliver their case a similarity of due process.

While the open has exceptionally small tolerance to appreciate such subtleties of the law, courts are duty-bound to preserve a tall degree of constancy to these forms.

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