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Report No. 262

B. Implementation of the Bachan Singh Framework

5.2.1 Despite the Court's optimism in Bachan Singh that its guidelines will minimise the risk of arbitrary imposition of the death penalty, concerns that capital punishment is "arbitrarily or freakishly imposed" Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 15, continue to haunt death penalty jurisprudence in India. In the last decade itself, in cases like Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230, Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767, Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641,
Sangeet v. State of Haryana, (2013) 2 SCC 452, Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546 and Ashok Debbarama v. State of Tripura, (2014) 4 SCC 747 ("Arbitrariness, discrimination and inconsistency often loom large, when we analyze some of judicial pronouncements awarding sentence"), the Supreme Court has acknowledged that the application of the death penalty is subjective and arbitrary and that "even though Bachan Singh intended "principled sentencing", sentencing has now really become judge-centric." Sangeet v. State of Haryana, (2013) 2 SCC 452, at para 33.

Thus, "the confirmation of death sentence or its commutation by this Court depends a good deal on the personal predilection of the judges constituting the Bench." Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC. 767, at para 51. Recognizing this to be a "serious admission" Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 54, on its part, the Court in Santosh Bariyar admitted that "there is inconsistency in how Bachan Singh has been implemented, as Bachan Singh mandated principled sentencing and not judge centric sentencing." Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 54.

5.2.2 Noting that "the Bachan Singh threshold of "the rarest of rare cases" has been most variedly and inconsistently applied," Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 109, the Supreme Court has recognized that "the balance sheet of aggravating and mitigating circumstances approach invoked on a case-by-case basis has not worked sufficiently well so as to remove the vice of arbitrariness from our capital sentencing system."

Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 109, Where Bachan Singh held that well recognized principles evolved through judicial precedent would guide courts in capital sentencing, in Mohd. Farooq, the Supreme Court admitted that "the precedent on death penalty... is [itself] crumbling down under the weight of disparate interpretations." Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para 165.

5.2.3 Enumerating cases where different Benches have reached diametrically opposite results in cases which have similar facts and circumstances,419 the Supreme Court has called the "lack of consistency" Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767, at para 52 and "want of uniformity" Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767, at para 52, in capital sentencing, "a poor reflection of the system of criminal administration of justice."

Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767, at para 52. The Court has expressed concern that the "extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle." Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 110.

419 See below.

5.2.4 In Bachan Singh, the Supreme Court had called upon judges to "discharge the onerous function (of deciding whether or not to impose the death penalty) with evermore scrupulous care and humane concern." Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209. Echoing a similar sentiment, in Bariyar, the Court noted that "the conclusion that the case belongs to rarest of rare category must conform to highest standards of judicial rigor and thoroughness." Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 61.

However, as the Court has itself recognized over and again, there exist multiple layers of inconsistencies in India's death penalty jurisprudence, which make it difficult to achieve rigor in sentencing decisions in capital offences. At the most basic level, the death penalty jurisprudence displays varied and often competing understandings of the penological purposes of the death penalty itself. Since this aspect has been covered in the previous chapter, it will not be dealt with here.426

426 See Chapter IV above.

5.2.5 In what follows, this Report examines the concerns regarding arbitrariness in India's capital sentencing regime, as highlighted by the Supreme Court itself, supplemented by scholarly interventions, empirical data, and comparative insights.



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