The Legacy of Capital Sentencing Discretion: Unpacking the Unfair History behind ‘fair’ Powers of Discretion

Socio-Legal Review
Jun 28
10 min read

Lakshmi Menon

Introduction

After India’s independence, its Supreme Court became the primary actor charting the course of the death penalty today. Public discourse on death penalty law has focused on the Supreme Court’s endeavours to constrain its use, through a reliance on fair sentencing processes and judicial discretion in capital cases. Criticism of the Court’s approach centres on the inadequacy of these processes, and the purposes served by the death penalty. Barring a few conversations (here), debates around on first principles issues of the death penalty (such as cruelty, torture, violation of the right to life and dignity) have taken place with far less intensity in legal discourse.

However, findings from the historian Alastair McClure’s recently published book Trials of Sovereignty: Mercy, Violence, and the Making of Criminal Law in British India challenges the neglect of first principles issues in death penalty discourse, and the emphasis on procedure and discretion at capital sentencing. Relying on McClure’s account, I argue that the Supreme Court’s hyper-emphasis on procedural fairness in capital sentencing, built upon wide judicial discretion, continues a colonial legacy designed to subjugate Indians through violent punishment. To build this argument, I explain — (i) the Court’s failure to engage with the death penalty on first principles, (ii) wide discretion under IPC (now BNS, which leaves the IPC’s sentencing discretion intact) and its colonial purpose of sustaining a punishment that remains unsustainable in principle and (iii) why the issues of first principles and fair sentencing processes are not divorced from each other.

Part II of this article briefly examines the Supreme Court’s trajectory with the death penalty, and dominant discourse criticising the Court’s approach. Part III will trace colonial roots of discretion, and its role in sustaining this punishment. Part IV address the first principles issues at play with the death penalty. Part V explores how the Court’s actions and omissions in the death penalty reinforce a colonial legacy, and how the judicial history of the death penalty reframes, and makes critical discourse of the death penalty, more robust. Part VI concludes.

The Supreme Court’s capital punishment trajectory

This section traces the Supreme Court’s trajectory with the death penalty through four crucial judgments - (i) Jagmohan v. State of Uttar Pradesh (1973), (ii) Bachan Singh v. State of Punjab (1980), (iii) Mithu v. State of Punjab (1983) and (iv) Manoj v. State of Madhya Pradesh. These judgments stand out for their impact on death penalty administration, creation of fair processes and the underscoring of IPC’s sentencing discretion as a vital element of fairness. A reading of these precedents reveal that the Court — (i) treats first principles challenges as a separate category from process related issues, (ii) provides minimal engagement to first principles, thereby characterising the death penalty as inherently permissible, (iii) regards the IPC’s sentencing discretion, with minimal modification, as a condition for fairness.

Centrality of discretion

In Jagmohan, the death penalty was challenged for the first time. The petitioners argued against its violations of Articles 19 (for taking away a person’s liberties through death), 14 (for the unguided judicial discretion that resulted in uneven outcomes between life and death) and 21 (in the absence of procedure established by law). With the exception of the Article 19 challenge, that speaks to a first principles problem for the death penalty, the two other issues focus on procedural concerns. Jagmohan swiftly dismisses the Article 19 challenge, stating that it does not directly address the right to life. Turning the equality challenge on its head, Jagmohan finds that wide judicial discretion in the IPC was central to equality and fairness in capital punishment. The Court also refused to constrain the wide discretion of judges in choosing between life and death.

In the second constitutionality challenge – Bachan Singh (decided by a Constitution Bench with a 4:1 majority) – the first principles issues raised were wider. The death penalty, petitioners argued, constituted cruel, inhuman and degrading punishment; there was no deterrence of crime through this punishment; retribution and vengeance alone could not be considered valid purposes of punishment. Alternatively, the legal framework provided no guidance on the ‘special reasons’ to impose the death penalty during sentencing.

Once again, the death penalty was upheld decisively, with minimal engagement (either normative or empirically backed) on the first principles challenges. Instead, the Court focused its energy on providing ‘illustrative guidelines’ to guide sentencing discretion in capital cases, with a clarification that it did not seek to constrain such discretion. The centrality accorded to discretion in the IPC continued in Mithu v. State of Punjab, which struck down the mandatory death sentence as unconstitutional, on the grounds of discretion. The Court used this opportunity to reiterate the importance of wide sentencing discretion as found under the IPC. Through this trifecta of decisions, the Supreme Court managed to restrict the first principles challenges to the death penalty. In particular, the idea that the IPC’s sentencing discretion was a constituent of fairness and could retain the death penalty, became established in law and discourse. As the next subsection will demonstrate, Courts have attempted to direct judges to use this discretion for a fairer process, thereby reinforcing its position.

Creation of fair processes through discretion

In the past decade, empirical evidence on the arbitrariness and unfairness of capital sentencing practices in courts has exposed flaws in the Supreme Court’s assumptions of discretion and fairness.

Cognizant of these gaps, the Court introduced safeguards at various stages of the death penalty. At the level of sentencing, the Court clarified guidelines in Bachan Singh further, interpreting them as a clearer two-step process (2009), or a three step test (2013). In Manoj (2022), the Supreme Court also obliged sentencing courts to use this discretion to collect information about the prisoner through reports from social workers, prison officials and psychiatrists. The Court built in safeguards through the creation of additional stages, such as a mandatory hearing in open court for all death penalty review petitions. These decisions accept the permissibility of the death penalty, while addressing only systemic issues in its administration.

The Court’s overwhelming focus on the death penalty’s process related issues has accordingly driven discourse. Academic discourse sometimes lauds the Court’s successes in reducing the number of executions. More often, it critiques the judicial framework that enables unequal and arbitrary sentencing practices. Literature that focuses on the human impact of the death penalty – through conditions on death row, unfair trials and investigations, custodial violence – challenges the death penalty, but on the grounds that India’s criminal justice system is too broken to be able to sustain it fairly. This assumption detracts from deeper engagement with issues in India’s death penalty at a principled level.

The next subsection will demonstrate how both discretion, and the first principles problems, are intricately intertwined.

A colonial history of fairness

Trials of Sovereignty – a legal historical account uncovering the vital role of the criminal justice system in entrenching colonial authority of the British empire – explores two under-discussed, seemingly benign powers, including judicial discretion at sentencing (especially in capital cases and sedition cases), the powers of amnesty and their role in sustaining colonial empire. This section focuses on the role of judicial discretion.

Under Crown rule, the IPC was introduced, offering significant discretion in choosing between punishments. For instance, offences such as sedition were punishable from three years to transportation for life. Life imprisonment and the death penalty were prescribed for murder. Judges also had wide discretion in imposing corporal punishment.

Discretion in the IPC contradicted the principled purpose of codification. Further, the metropole (which was then beginning to question unrestrained judicial discretion) had itself never witnessed, in its history, such breadth of discretion for judges. Moreover, the codification enterprise under the IPC rested on Benthamite principles that viewed discretion critically. Yet, the codification incorporated far more discretion than English law in the metropole ever did. Colonial administrators, through detailed correspondence, guided judges on which kinds of individuals merited particular punishments.

Discretion served multiple purposes in upholding the political legitimacy of empire. By creating a criminal framework that courted violence with simultaneous opportunities to escape such violence, the regime was able to assert its control over potential dissenters and bring them back to the fold as obedient subjects.

In addition to suppressing dissent, discretion in capital cases maintained the empire’s legitimacy as a ruler which was sensitive to cultural and social hierarchies of the time (in turn, reinforcing local prejudices). Capital cases involving the murder of one’s wife often resulted in the lesser sentences of life imprisonment or transportation for life; simultaneously, murders of high caste women by men from lower castes resulted in harsher punishment. Casteist notions of chastity of lower caste rape victims played a significant role in the judge’s decision to impose lesser sentences.

Wide powers of sentencing served a two-fold purpose – subjecting masses of undesirable Indians to violence and death while portraying the Crown as a benign ruler, capable of mercifulness. Ultimately, political resistance to this warped vision of justice – through the historic sedition trials of Lokamanya Tilak and Mahatma Gandhi, became crucial in dismantling British rule in India. In particular, Gandhi rejected the notion of mercy and discretion to impose lesser sentences, by connecting its role to the larger colonial project of sustaining violence and fear amongst the masses. In his trial in 1922, Gandhi, as part of submissions to the court, laid bare the reality of the empire’s violence and oppression, masked through these powers.

By offering a detailed legal-historical account, McClure challenges the assumption that the sentencing discretion (as available under the IPC) is the safeguard that it is. Through this finding, the terms of critiquing India’s death penalty can be reframed. First principles problems have been viewed as a separate set of normative and empirical considerations for the death penalty, divorced from the question of fair processes. By revealing the use of process to sustain a punishment inherently flawed, Trials of Sovereignty reveals a deeper connection between process and principle, allowing us to revisit how we challenge the death penalty.

First principles challenges for the death penalty

Here, I will briefly surmise the inherent problems of the death penalty - by which I mean problems that cannot be addressed through external conditions (such as a better functioning criminal justice system, or fairer sentencing practices). At its core, the death penalty destroys life, inflicts cruel and inhuman treatment right from the pronouncement of a death sentence, and subjects individuals to suffering during execution.

Hugo Adam Bedau frames cruelty through the lens of a power relationship, involving total control from a powerful actor (the State) and the absolute subordination of the condemned. This dynamic is activated both at sentencing and during execution. For Bedau, this relationship is inherent to the death penalty, ‘with or without due process’. Death penalty scholars, such as John Bessler, point to the cruelty inherent at every step of the death penalty - from sentencing, to the horrors of waiting for one’s execution on death row, to the physical torture and mutilation caused by almost every method of execution known to us, including hanging.

Comparative jurisprudence has relied on these grounds to strike down the death penalty. South Africa – with a similar colonial history as India’s – found the death penalty to be cruel and inhumane, and a punishment whose arbitrariness and vices could not be saved even by the best of systems. Empirical discourse from various jurisdictions point to its unproven role in deterrence for crime, undercutting a key penological goal used to defend its retention. In India, the only legal recognition of its inherent problems is found in the minority opinion in Bachan, authored by Justice Bhagwati, who cites its irrevocability, and the intense physical and mental suffering imposed by the punishment.

Colonial rule in India deliberately used this suffering to justify the inclusion of the death penalty in the IPC. The sentencing framework was constructed to instil fear, enforce violence, and facilitate subjugation. Thus, during colonial rule, hundreds of Indians were executed each year. By upholding this very system of the death penalty and its sentencing framework under the IPC (now, the BNS), the Supreme Court continues a horrific colonial legacy.

Reframing issues against the death penalty

Through its omissions to address first principles problems of the death penalty, and by using fair processes that have little impact on the former, the Court ensures a continued colonial trajectory. This point is not to deny its successes in reducing the number of death sentences and executions, the efforts in recognising life circumstances of capital offenders during sentence hearings, and the marked differences in procedural guarantees from the colonial era.

Rather, as McClure finds elsewhere, these efforts have provided firmer foundations for the retention of the death penalty. Judicial discretion and the persistence of capital punishment mean present-day India continues to use these powers to ensure the executions of high profile prisoners to appease popular sentiment. All the eight prisoners who have been executed since 2000 were involved in high profile cases of sexual violence (here, here) and terrorism (here, here, here), with significant public calls for execution.

In turn, the Court’s emphasis on discretion and process restricts the terms of discourse, which has increasingly shifted to the criminal justice system’s inability to ensure fairness. The discourse may also be limited partly due to a complete reliance on legal doctrine; a legal historical account of death penalty and sentencing reveals more, and reframes the debate in richer, wider terms.

The history of India’s judicial discretion at sentencing demonstrates the futility of approaching, and critiquing, process related issues and first principles problems of the death penalty, as separate issues. The Court’s own jurisprudence shows how this separation enables procedural fairness to obscure the fundamental, principled flaws of the death penalty—especially when viewed through its colonial roots. Further, it has the effect of acting as a firewall from substantial engagement with the death penalty. In this context, the very centrality accorded to discretion under the IPC, as an element of fairness, must be questioned.

This argument also means that the core issue at hand is never about discretion, as the Supreme Court's trajectory would make us believe. The issue, instead, is the avoidance of first principles problems of the death penalty – and the role of discretion here in acting as a firewall.

Conclusion

Through the lens of legal history, I have argued that developments that speak to the fairness of processes in the death penalty must be viewed critically, within the historical context of this system. McClure’s book spotlights how debates fixate on procedure while ignoring deeper ethical objections. The retention of the death penalty in independent India has continued successfully, and its continuance draws from powers deemed as fair, created by the British Empire to sustain violence, terror and imperial power over people. Those same “fair” powers must be scrutinised, not embraced as a shortcut around the death penalty’s fundamental flaws.