Report No. 262

(iv) Judicial developments on the arbitrary and subjective application of the death penalty

1.3.14 Despite the Court's optimism in Bachan Singh that its guidelines will minimise the risk of arbitrary imposition of the death penalty, there remain concerns that capital punishment is "arbitrarily or freakishly imposed". Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 15. In Bariyar, the Court held that "there is no uniformity of precedents, to say the least. In most cases, the death penalty has been affirmed or refused to be affirmed by us, without laying down any legal principle." Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 104.

1.3.15 Such concerns have been reiterated on multiple occasions, where the Court has pointed that the rarest of rare dictum propounded in Bachan Singh has been inconsistently applied. In this context, it is instructive to examine the observations of the Supreme Court in Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230, Swamy Shraddhananda v. State of Karnataka ('Swamy Shraddhananda'), (2008) 13 SCC 767, Farooq Abdul Gafur v. State of Maharashtra ('Gafur'), (2010) 14 SCC 641, Sangeet v. State of Haryana ('Sangeet'), (2013) 2 SCC 452 and Khade, (2013) 5 SCC 546.

In these cases, the Court has acknowledged that the subjective and arbitrary application of the death penalty has led "principled sentencing" to become "judge-centric sentencing", Sangeet v. State of Haryana, (2013) 2 SCC 452 based on the "personal predilection of the judges constituting the Bench." Swamy Shraddhananda v. State of Karnataka, (2008) 13 SCC 767.

1.3.16 Notably, the Supreme Court has itself admitted errors in the application of the death penalty in various cases. See Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546 and Sangeet v. State of Haryana, (2013) 2 SCC 452.