The Supreme Court’s Death Penalty Focus

The last two months of 2018 saw judgments being delivered in 11 death penalty cases,¹ all of which resulted in commutation to life imprisonment.² The Supreme Court has in these cases clarified the role of certain individual mitigating factors and in that sense cleared some of the confusion surrounding death penalty sentencing. However, despite these clarifications on individual factors, there are procedural and normative questions that need urgent resolution. Fundamental issues like collection of mitigation evidence, the constitutional threshold for sentencing evidence to satisfy fair trial requirements, the appropriate judicial approach to aggravating/mitigating factors, etc, remain unresolved in the Supre­me Court’s death penalty jurisprudence. While the recent developments on individual factors are certainly significant, these are unlikely to resolve the arbitrariness that plagues death penalty sentencing.

After introducing the death penalty sentencing framework, this article then seeks to capture certain fundamental legal questions that remain unidentified and unresolved despite four decades of death penalty jurisprudence from the Supreme Court. Following this, while examining the 11 recent Supreme Court decisions, the attempt is to analyse the impact of these decisions on the broader problems identified earlier. The conclusion uses the Bombay High Court’s judgment in The State of Maharashtra v Chandrabhan Sudam Sanap 2015³ (delivered after these 11 Supreme Court judgments) to demonstrate the fundamental challenges that remain in bringing any degree of coherence to judicial approaches to the death penalty.