Evidence from Trial Courts: A Sine Qua Non for Capital Sentencing Reform in India


Snehal Dhote
Associate (Sentencing), Project 39A


Time to read

5 Minutes


In September 2022, the Supreme Court of India acknowledged concerns about the capital sentencing framework and ordered the setting up of a Constitution Bench to review it. 42 years after the framework was formulated in Bachan Singh v. State of Punjab (1980),[1] the Court is looking to plug the gaps and reform it to provide a “meaningful, real and effective” opportunity for convicts to be heard regarding sentencing. This was much needed, as India’s sentencing crisis is well documented at both trial and appellate levels, which exposes the heavily crime-centric and mitigation-less state of capital sentencing. The fact that only 4.9% of trial court death sentences eventually end up being confirmed by the Supreme Court is a testament to this reality. People spend significant time on death row only to be acquitted or have their sentences converted to life imprisonment by the appellate courts. In light of this reality, for any meaningful reform, it will be crucial for the Constitution Bench to take note of the nature and extent of the crisis in capital sentencing in trial courts.

Forty-two Years After Bachan Singh

The last constitutional challenge to the death penalty was made in Bachan Singh, where the Court while upholding its constitutionality offered a broad sentencing framework to guide judicial discretion in deciding between a life and death sentence. Giving meaning to sections 235(2) and 354(3) of the Code of Criminal Procedure, which recognise the individualised nature of sentencing and establish the death penalty as the exceptional punishment respectively, Bachan Singh held that the death penalty can only be imposed in the “rarest of rare” cases where the alternative option of life imprisonment is “unquestionably foreclosed”. Thus, sentencing judges are required to identify and weigh aggravating and mitigating factors related to the crime and the convict. They are mandated to consider the convict’s probability of reformation and the option of a life sentence. Bachan Singh also underscored that mitigating (and not aggravating) circumstances are to receive a “liberal and expansive construction”.

Despite this, mitigation is rarely presented and considered by courts in their decision-making. This is because Bachan Singh did not provide doctrinal clarity around the meaning and purpose of mitigation, and the procedure to collect and present mitigating material before the court. Two recent decisions within the span of a month demonstrate that significant doctrinal confusion has arisen within the decisions of the Indian Supreme Court on issues of capital sentencing. In Manoj v. State of Madhya Pradesh (May 2022),[2] the Court held that imposition of the death penalty in the absence of well-documented mitigating circumstances by the trial court is the incorrect application of the Bachan Singh framework. It created a duty upon trial courts to elicit information from both the convict and the state, such as a jail conduct report and a psychological and psychiatric evaluation of the convict. However, in sharp contrast, a month later, another decision of equal bench strength in Manoj Pratap Singh v. State of Rajasthan (June 2022)[3] shook the foundation established by Manoj. It held that even if mitigation was not carried out by the trial court, the procedural lapse of section 235(2) is not so grave for death to be “forsaken”. Addressing the doctrinal confusion that pervades the capital sentencing framework will have to be at the heart of the Constitution Bench’s mandate.

Same-day Sentencing

The presentation of mitigating circumstances has major practical concerns attached to it. While aggravating circumstances are already placed on record through the case record, significant time and resources are required to present a life history of the convict for mitigation. The defence team has to be given sufficient time and opportunity to do this.

However, Project 39A’s pan-India 2022 study Death Penalty Sentencing in India’s Trial Courts (‘Trial Courts report’), analysing capital sentencing trends in trial courts over a three-year period between 2018 to 2020, found that sentencing convicts to death on the same day as their conviction was a rampant practice. Out of the 306 judgments analysed for this study, same-day sentencing happened in nearly 36.1% of the cases. In about 18.4% of cases, the gap between conviction and sentencing was only one day. Consequently, defence lawyers approached mitigation perfunctorily. In most cases, they neither argued nor presented evidence at sentencing. In a small number of cases where mitigating circumstances were presented, their mention was formal and restricted to a few factors like youth, absence of criminal history and presence of dependents, without any contextualisation.

Over the years, two strands of judgments have emerged on same-day sentencing. In one strand, the courts have considered it as a procedural lapse and a due process violation; in the other, they have treated it as a defect curable by the appellate courts. Despite leading to substandard mitigation, the Indian Supreme Court does not see same-day sentencing as a problem in and of itself. There has been no engagement with what constitutes “sufficient time” to ensure a real, meaningful and effective capital sentencing hearing. The newly-established Constitution Bench is the first time that the Supreme Court has acknowledged the problem and is willing to rectify it.

Inside an Indian courtroom
Photo credit: Swapnil Vasant Bhalerao via Shutterstock.

Crime-centric and Mitigation-less Sentencing

The poor quality of legal representation also compromises courts’ engagement with mitigating circumstances. The Trial Courts report found that trial courts failed to even mention mitigating factors in 40.2% of cases, let alone qualitatively consider them. In cases where mitigating circumstances were mentioned, instead of meaningfully considering them, trial courts dismissed them per se in light of the aggravating circumstances. Trial courts, in their dismissal of mitigating circumstances, demonstrated a problematic understanding of mitigation as an excuse for the crime. In essence, sentencing was overwhelmingly crime-driven, with little consideration for mitigation. The Constitution Bench must look to develop the law on this aspect to ensure that mitigation is both meaningfully presented and considered by courts in their decision-making.

Probability of Reform and Life Imprisonment Not Considered

There is little doubt about the exceptional position of the death penalty as a punishment, though Bachan Singh did not address all substantive and procedural issues relating to capital sentencing. However, trial courts do not demonstrate an understanding of this.

While recent three-judge bench Supreme Court decisions[4] have held that life imprisonment can be said to be unquestionably foreclosed only when the aim of reformation is unachievable, in about 40% of cases, trial courts did not mention the convict’s probability of reform. In 16.7% of cases, life imprisonment was not discussed. However, where it was discussed, 70% of the reasons for dismissal were crime- and criminal-related aggravating factors. Given this reality, it will be important that the Constitution Bench settle the law on the relevance of considering the convict’s potential for reform and the consideration of the option of life imprisonment.


Trial courts do not understand mitigation, nor do they know how to engage with it. In a context where public opinion strongly favours the death penalty for serious crimes, it is easier for trial judges to be influenced by the circumstances of the crime. Similarly, the lack of normative clarity on the importance of reformation as a penological goal and its connection to the question of life facilitates the imposition of death sentences without any regard for convicts’ probability of reformation. Even when judges want to consider reform, there is confusion about whose duty it is to prove or disprove reformation, and how it is to be done. These emerge from a lack of both substantive and procedural clarity on fundamental aspects of the capital sentencing framework. The evidence from trial courts is a demonstration of the fatal impact of the confused Supreme Court jurisprudence. It is also a reflection of both the practical and substantive challenges for criminal courts at the lowest level trying to implement the capital sentencing framework. A Constitution Bench looking to reform the law must necessarily look at this evidence to understand and address the range of issues at stake.

Profile photo of Snehal Dhote Snehal Dhote is an Associate (Sentencing) at Project 39A, National Law University, Delhi.


[1] Bachan Singh v State of Punjab (1980) 2 SCC 684 (Supreme Court of India).

[2] (2022) Criminal Appeal Nos. 248-250 of 2015.

[3] (2022) Criminal Appeal Nos. 910-911 of 2022, arising out of SLP (Crl) No(s) 7899-7900 of 2015.

[4] See: Manoj v The State of Madhya Pradesh (2022) Criminal Appeal Nos. 248-250 of 2015; Mofil Khan v The State of Jharkhand (2021) Review Petition (Criminal) No. 641 of 2015; Bhagwani v The State of Madhya Pradesh (2022) Criminal Appeal Nos. 101-102 of 2022.