India’s capital punishment regime is in crisis, an issue acknowledged by the country’s Supreme Court. But the incremental changes it is making sit at odds with the reality of death penalty sentencing in the country’s trial courts, and the attitudes of the government.
Upon the return of physical hearings in August 2021 (following a pause due to the pandemic), the Supreme Court published a list of 40 appeals from death row prisoners to be heard as a matter of priority. The judges hearing the matters have expressed serious reservations about the sentencing exercises of the lower courts that doled out the initial death sentences. At the heart of the concerns is the deviation from the process laid down in previous judgments. In May 1980, India’s five-judge bench of the Supreme Court upheld the constitutional validity of capital punishment but stressed there were conditions on when it should be deployed: only after judges took into account aggravating and mitigatng factors about the crime and the accused. In the four decades since, it appears this judicial framework has collapsed. A big part of that collapse has been the sole focus on crime-related aggravating factors by sentencing judges. In sentencing people to death, insufficient attention has been paid to ensuring that mitigating factors about the accused are presented before the court.
