Sentencing Inconsistency in Capital Punishment – A Flaw in the Scales of Justice

The Uneasy Conscience of Capital Justice

Introduction

The Uneasy Conscience of Capital Justice:

Capital punishment, or the death penalty, has long remained one of the most divisive issues within modern criminal jurisprudence. Proponents uphold it as a deterrent to grave crimes and an instrument of retributive justice. Critics, however, view it as an irreversible, morally indefensible, and inconsistently applied form of punishment that risks executing the innocent.

In India, this moral and legal dilemma is amplified by the “rarest of rare” doctrine introduced in Bachan Singh v. State of Punjab (1980), where the Supreme Court declared that the death penalty must be reserved only for cases in which life imprisonment is “unquestionably foreclosed.” Despite this judicial restraint, capital sentencing continues to exhibit alarming inconsistency. The doctrine’s subjective interpretation, judicial discretion, and disparities in legal representation contribute to what many scholars call a “lottery of death.”

This arbitrariness has been recognized by the judiciary itself. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009), the Supreme Court lamented the absence of structured sentencing guidelines and called for a systematic assessment of both aggravating and mitigating factors. The Court’s concern remains poignant: when death is dispensed unevenly, the scales of justice tilt dangerously away from fairness.

At its heart, the problem lies in inconsistency—where two individuals convicted of similar crimes may face starkly different fates. Some are condemned to die; others live out their days in prison. Such disparity not only erodes the moral legitimacy of the justice system but also questions its constitutional promise of equality before the law.

The Constitutional Imperative of Consistency – A Fragile Ideal

The Constitutional Imperative of Consistency – A Fragile Ideal:

Sentencing inconsistency occurs when similar crimes committed under comparable conditions yield vastly different punishments. The principle of equal protection under Article 14 of the Indian Constitution demands that justice be consistent and impartial. Yet, capital punishment remains susceptible to personal bias, regional attitudes, and socio-economic disparity.

In Bachan Singh, the Supreme Court laid down a constitutional mandate of restraint, emphasizing individualized sentencing and a balance between aggravating and mitigating factors. However, the subjective interpretation of what constitutes the “rarest of rare” continues to yield varied outcomes.

For instance, two murder cases with similar brutality might be treated differently depending on the judge’s moral outlook or the region’s socio-political sentiment. Defendants represented by skilled lawyers often escape the death penalty through well-crafted mitigation, while the poor—lacking competent counsel—face execution.

The judiciary’s later interventions, particularly in Santosh Bariyar (2009), sought to rationalize sentencing through a “culpability test,” urging judges to evaluate mental state, motive, and potential for reform. Despite these efforts, inconsistency persists, leaving the death penalty’s moral and constitutional standing on fragile ground.

Factors Contributing to Sentencing Inconsistency

Factors Contributing to Sentencing Inconsistency:

The Lottery of Geography

The Lottery of Geography:

Geographical variation is a striking source of inconsistency. The probability of receiving a death sentence often depends more on where the crime occurred than what was done.

In one hypothetical example, a defendant in a conservative rural district may face zealous prosecutors and pro-death juries, leading to execution. A similar offender in a liberal urban area, benefiting from cautious prosecutors and better defense resources, may receive life imprisonment. This “death-belt phenomenon” underscores how regional culture and local politics distort uniform justice.

Racial Bias and Victim Characteristics

Racial Bias and Victim Characteristics:

Empirical studies reveal a troubling correlation between race and capital sentencing. Cases involving white victims are significantly more likely to attract death sentences. Similarly, minority defendants—particularly Black or Dalit individuals—face higher risks of capital punishment.

This racialized dimension implies that the value placed on life in judicial proceedings can be unconsciously filtered through social and racial bias, contradicting the constitutional promise of equality.

Quality of Legal Representation

Quality of Legal Representation:

Access to competent legal defense often determines whether a person lives or dies. Poor defendants relying on overburdened legal aid lawyers rarely see thorough investigations into mitigating factors like trauma, mental illness, or youth. Meanwhile, affluent defendants can assemble expert defense teams that humanize them before juries.

This disparity turns justice into a privilege rather than a right, converting legal representation into a currency for survival.

Prosecutorial Discretion and Plea Bargaining

Prosecutorial Discretion and Plea Bargaining:

Prosecutors wield tremendous influence in deciding whether to seek the death penalty. This discretion—guided by political pressure, personal beliefs, or resource constraints—often results in uneven outcomes. Two equally culpable defendants may receive drastically different punishments solely based on a prosecutor’s decision to offer or withhold a plea bargain.

Such arbitrariness, invisible to public scrutiny, undermines consistency and further politicizes death sentencing.

Ethical and Legal Implications of Inconsistency

Ethical and Legal Implications of Inconsistency:

The moral and constitutional consequences of sentencing disparity are grave:

1. Violation of Equal Protection: Unequal treatment of similarly situated offenders violates Article 14’s guarantee of equality before the law.
2. Arbitrariness as Cruelty: The U.S. Supreme Court in Furman v. Georgia (1972) struck down death sentences imposed capriciously, deeming such randomness cruel and unusual punishment. The same reasoning resonates in India’s context.
3. Erosion of Public Confidence: When justice depends on geography or wealth, public trust crumbles. The legitimacy of the judiciary is rooted not only in law but also in perceived fairness.
4. Moral Injustice: That life or death might hinge on one’s caste, region, or the competence of counsel is ethically indefensible. It transforms justice from a principle into a gamble.

Efforts to Address Inconsistency and Their Limitations

Efforts to Address Inconsistency and Their Limitations:

1. Aggravating and Mitigating Circumstances

In State of Punjab v. Prem Sagar (2008), the Supreme Court insisted on balancing the nature of the offence with the offender’s circumstances. Yet, judges continue to apply these factors unevenly, influenced by personal philosophy and public sentiment.

2. Proportionality Review:

Following Mithu v. State of Punjab (1983), which invalidated mandatory death sentences under Section 303 IPC (now superseded by Section 104 BNS), proportionality became integral to sentencing. However, India lacks institutional mechanisms to systematically compare capital cases for proportionality as some U.S. states do. The absence of this inter-case review prevents checks on judicial subjectivity.

3. Improved Indigent Defense:

While Mohd. Hussain v. State (2012) recognized that poor representation violates the right to a fair trial, underfunded legal aid systems still fail to safeguard the most vulnerable.

4. Categorical Exemptions:

Judicial and legislative developments have exempted certain categories—juveniles and the intellectually disabled—from execution. The decision in Shatrughna Baban Meshram v. State of Maharashtra (2023) reaffirmed this humane evolution. Yet, broader inconsistencies remain untouched.

5. Persistent Limitations:

Despite these reforms, human discretion—of judges, prosecutors, and defense attorneys—continues to dictate outcomes. In State of Madhya Pradesh v. Bablu (2014), the Court called for legislative sentencing guidelines, yet none have been enacted.

Reform Proposals

Reform Proposals:

Meaningful reform demands systemic overhaul rather than case-by-case correction. Possible steps include:

• Establishing a National Sentencing Commission: To create structured, binding guidelines that minimize judicial subjectivity.
• Mandatory Sentencing Reports: Courts should transparently justify why the death penalty is chosen over life imprisonment.
• Judicial Training: Continuous education on implicit bias, proportionality, and human rights norms.
• Public Transparency: Periodic publication of sentencing data to encourage scrutiny and accountability.

The Inherent Flaw

The Inherent Flaw:

Despite repeated judicial interventions, the death penalty in India remains an inconsistent, unpredictable, and morally fraught institution. The uneven application of the “rarest of rare” doctrine exposes deep fissures in the justice system, revealing how geography, class, and bias often outweigh culpability.

This “lottery of death,” where human life depends on arbitrary factors rather than consistent principles, corrodes the foundations of justice. While structured sentencing and accountability mechanisms may mitigate the problem, they cannot eliminate its essence—human fallibility.

Ultimately, the very impossibility of ensuring uniformity and fairness in such an irreversible punishment strengthens the moral and constitutional argument for abolition. A justice system worthy of trust must aspire not to vengeance, but to fairness, dignity, and redemption.

The ‘Rarest of Rare’ Doctrine – Origins and Evolution

The ‘Rarest of Rare’ Doctrine – Origins and Evolution:

• Bachan Singh v. State of Punjab (1980): Death penalty to be imposed only when life imprisonment is unquestionably inadequate.
• Machhi Singh v. State of Punjab (1983): Expanded on Bachan Singh, identifying aggravating and mitigating circumstances but leaving much to judicial discretion.

Case Illustrations of Sentencing Inconsistency

Case Illustrations of Sentencing Inconsistency:

These examples reveal how mental health, delay, political context, and public sentiment influence outcomes beyond the scope of the crime itself.

Structural Causes of Inconsistency

Structural Causes of Inconsistency:

• Judicial subjectivity in interpreting “rarest of rare.”
• Absence of codified sentencing guidelines.
• Socioeconomic bias in representation.
• Political and public pressures in high-profile cases.

Comparative Perspectives

Comparative Perspectives:

• United States: Deep regional disparities; race and prosecutorial discretion shape sentencing.
• United Kingdom: Abolished capital punishment; consistency ensured through statutory sentencing guidelines.
• India: Retains death penalty sparingly but inconsistently, despite judicial caution.

Conclusion

Conclusion:

Sentencing inconsistency in capital punishment reveals the fragility of human judgment when tasked with deciding between life and death. Until the system can guarantee uniform fairness—which history and human nature suggest it cannot—the moral legitimacy of capital punishment will remain in doubt. The scales of justice, when unevenly weighted by bias and chance, cannot claim to deliver true justice.