The Enduring Gaps and Errors in Capital Sentencing in India

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Anup Surendranath, Neetika Vishwanath, and Preeti Pratishruti Dash

In the forty years since Bachan Singh upheld the constitutional validity of the death penalty in May 1980, there have been numerous concerns about the fate of the death penalty sentencing framework laid down by the majority. Inconsistent application, interpretational errors, and judge-centric decision making have dominated these concerns. However, this article seeks to revisit the premise of those narratives, i.e. these concerns have emerged as a result of the incorrect application of Bachan Singh. The focus is instead turned to the gaps within Bachan Singh itself and the manner in which those gaps have contributed to the subsequent fate of the sentencing framework. Demonstrating the complete collapse of what has come to be known as the ‘rarest of rare’ doctrine, the article identifies the procedural and substantive faultlines that have only widened over the last four decades. A profound lack of commitment to the rule of law and fair trial rights during sentencing proceedings lies at the heart of this doctrinal crisis where the courts are now burdened with a standard that is barely judicially maintainable. Unless we develop significant normative coherence and bring the full force of fair trial rights to bear on sentencing procedures, the constitutional crisis within death penalty sentencing will only deepen

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