Report No. 262
Sentencing in Capital offences
A. The Bachan Singh Framework: Guided Discretion and Individualized Sentencing
5.1.1 In Bachan Singh v. State of Punjab, (1980) 2 SCC 684 ('Bachan Singh') the Court had to address the following challenges to the death penalty:
(I) Whether death penalty provided for the offence of murder in Section 302, Indian Penal Code is unconstitutional.
(II) If the answer to the foregoing question be in the negative, whether the sentencing procedure provided in Section 354(3) of the CrPC, 1973 (Act 2 of 1974) is unconstitutional on the ground that it invests the Court with unguided and untrammelled discretion and allows death sentence to be arbitrarily or freakishly imposed on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code with death or, in the alternative, with imprisonment for life. Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 15.
5.1.2 The Court rejected the first contention, finding instead that the death penalty met the requirement of reasonableness in Article 19 and 21, primarily since a sizable body of opinion holds the view that the death penalty is a rational punishment.
As for the second, it dealt with the concern that the Cr.P.C. "invests the Court with unguided and untrammelled discretion and allows death sentence to be arbitrarily or freakishly imposed" Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 15, by deriving principles from legislative policy as well as judicial precedent, to guide the court in deciding whether to impose the death penalty in a given case.
5.1.3 To save the death penalty from the vice of arbitrariness, the Court sought to walk a tightrope between too much judicial discretion and too little, both of which could result in arbitrary and unfair sentencing. On the one hand, the Court held that it was "neither practicable nor desirable" Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 195, to lay down a rigid or straight-jacket formula or categories for the application of the death penalty. No two cases are exactly identical, and there are "infinite, unpredictable and unforeseeable variations. (and) countless permutations and combinations" Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 172, even with a single category of offences.
A mechanical, formulaic approach, not calibrated to the "variations in culpability" Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 173, even within a single type or category of offence, would cease to be judicial in nature. Rather, such standardization would "sacrifice justice at the altar of blind uniformity" Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 173, and may end up "degenerating into a bed of procrustean cruelty." Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 173.
5.1.4 At the same time, the Court held that the legislative policy indicated that the following principles should guide judicial discretion in determining the appropriate sentence for murder:
1. For the offence of murder, life imprisonment is the rule and death sentence an exception.
2. This exceptional penalty can be imposed "only in gravest cases of extreme culpability" taking into account the aggravating and mitigating circumstances in a case, paying due regard to the "circumstances of the offence," as well as the "circumstances of the offender."
3. To prevent sentencing from becoming arbitrary, the Court endorsed the view that the determination of aggravating and mitigating circumstances should be based on "well recognised principles... crystallised by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in those cases." Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 165. The Court thus prescribed a process of principled sentencing, and held that the determination of aggravating and mitigating factors would be based on a determinate set of standards created through the evolutionary process of judicial precedents.
4. Only if the analysis of aggravating and mitigating circumstances, as indicated above, provided "exceptional reasons" for death, would capital punishment be justified, because "[a] real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed." Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209.
5.1.5 According to the Court therefore, the principles indicated above provided sufficient guidance for the exercise of judicial discretion in sentencing for murder, and saved the death penalty from the charge of arbitrariness.