Skip to main content

Death Sentences in the Delhi Gang Rape Case: Brutality as Trumps

On 16th December 2012, a particularly disturbing case of gangrape and murder in New Delhi (‘the Delhi gangrape case’) set off massive nationwide protests. Widespread discussions on sexual violence in India led to significant criminal law amendments, including, the introduction of death penalty for the repeat offence of rape and also for rape resulting in death or vegetative state. More than four years later, the Indian Supreme Court on 5th May upheld the death sentence imposed on the four convicts by the trial court and the Delhi High Court. The Supreme Court’s judgment has significant consequences for the law on sentencing in capital cases, and necessitates closer scrutiny of the principles affirmed and ignored by the court.

Death Penalty Sentencing in India


In India, murder is punishable with either death or life imprisonment and rape as such does not attract the death penalty. Amendments to the Criminal Procedure Code in 1973 sent the clear message that life imprisonment was to be the norm and death was to be an exceptional punishment. The court is required to look at both aggravating and mitigating circumstances for deciding the apposite sentence. While upholding the constitutional validity of the death penalty in 1980, the Supreme Court in Bachan Singh emphasized that the nature of the crime and circumstances of the accused need to be balanced and explicitly stated that the circumstances of the accused need to be given a “liberal and expansive construction”. It was further emphasized that unless the alternative option of life was “unquestionably foreclosed”, death could not be imposed and required that one of the factors to be considered during balancing was the burden on the State to show that the accused was beyond reformation. In other words, circumstances of the accused should not be peripheral considerations that can simply be outweighed by the heft of the brutality without at least a closer and more meticulous judicial understanding of their nature and impact.


The Balancing Act


In 2009, reflecting on nearly three decades of using of the ‘rarest of rare’ doctrine and the balancing of aggravating and mitigating factors in death penalty cases, the Supreme Court in Santosh kumar Bariyar observed that in crimes of brutal and heinous nature, sentencing had been the biggest casualty. It prudently warned that rigour and fairness have to be given primacy over sentiments and emotions. However, in its judgment in the Delhi gangrape case, it is precisely this rigour and fairness that have been sacrificed at the altar of “collective conscience”. The judgment reveals that the court was acutely conscious of the furore generated by the crime, and factored that in while deciding on the sentence. Furthermore, despite recognising that the sentencing carried out in the lower courts were insufficient and not as per the law, the Supreme court chose, on weak legal grounds, to receive sentencing evidence acting as the court of first instance, instead of remanding the matter to the courts below.

After choosing to conduct the sentencing exercise itself, it is the manner in which the Supreme Court balanced the brutality of the crime with the circumstances of the convicts that is a cause for concern. Throughout the judgment, the brutality of the crime finds reiteration in great detail. The circumstances of the convicts, however, get mentioned in an almost perfunctory manner through an enumeration of the factors mentioned in affidavits produced by defense counsel. Without closely examining those circumstances, the court holds them to be outweighed by just the brutality of the offence. By doing so, the court seems to be sending a very clear message that in such cases of extreme brutality, retribution alone holds the field. By this principle, any case which appears to a judge to cross an illusory threshold of brutality would necessarily invite the death sentence, irrespective of the circumstances of the person accused of the crime.

The principle of retribution should not form a part of sentencing decisions. Several Supreme Court judgments ( 1979, 1983, 2014 ) emphasize the irrelevance of retribution in India’s constitutional framework. However, by privileging retribution as the pre-eminent sentencing principle in cases of high brutality, the judgment exposes a fundamental incoherence in the court’s penological thinking, something which can be ill afforded given the stakes involved. The judgment also highlights the importance of the caution sounded in Santosh Kumar Bariyar, with the brutality of the crime claiming one last casualty: the sentencing process itself.

Source: Oxford Human Rights Club, Amartya Kanjilal and Poornima Rajeshwar, 29th May 2017. Amartya Kanjilal is an Associate (Litigation) at the Centre on the Death Penalty at National Law University, Delhi. He has previously worked as a judicial clerk in the High Court of Delhi and has litigated in several courts and tribunals in Delhi. Poornima Rajeshwar is an Associate (Public Affairs) at the Centre on the Death Penalty at National Law University, Delhi. Prior to joining the Centre she was a research assistant to a member of the Indian Parliament.

⚑ | Report an error, an omission, a typo; suggest a story or a new angle to an existing story; submit a piece, a comment; recommend a resource; contact the webmaster, contact us: deathpenaltynews@gmail.com.


Opposed to Capital Punishment? Help us keep this blog up and running! DONATE!

Comments

Most viewed (Last 7 days)

Florida executes Harold Gene Lucas

Florida state officials executed 74-year-old Harold Gene Lucas by lethal injection on Tuesday evening, concluding a 50-year legal saga stemming from the 1976 murder of a 16-year-old girl in Bonita Springs. STARKE, Fla. -- A man convicted of killing a teenage girl who rejected his romantic advances and wounding two of her friends was put to death Tuesday in the first of three executions planned this month in Florida. Harold Gene Lucas, 74, was pronounced dead at 6:18 p.m. following a three-drug injection at Florida State Prison near Starke, authorities said. He was sentenced to death for the 1976 shooting attack on Jill Piper and the wounding of her friends, Richard Byrd Jr. and Terri Rice.

He Spent 27 Years on Death Row as a Wrongfully Convicted Man. What Comes Next?

23-hour solitary confinement. 115-degree heat. Jimmie Duncan is haunted by the decades he spent in Louisiana’s Angola Prison—and how, even after being released, he still isn’t truly free. Jimmie “Chris” Duncan wiped the sweat off his forehead as he assessed his temporary home from the parking lot of a rundown motel in central Louisiana. Sure, there’s drug dealing and prostitution, he said on a recent summer afternoon. And he suspected his neighbors were cooking meth on a floor below the room he paid $350 a week to rent.

Ex-corrections officials urge governor to commute Kansas death sentences

Former Kansas corrections officials are urging Governor Laura Kelly to grant clemency to the state's death row inmates. Former Kansas Corrections Secretary Roger Werholtz has several reasons why he thinks the state should abolish the death penalty. Werholtz, who served as secretary from 2002 to 2010 and returned on an interim basis in 2019, uses his discussions with peers and family members of victims as well as experiences of seeing wrongly convicted people getting exonerated as his guiding points.

Arizona AG seeks execution date for man convicted in 1995 trooper killing

Trooper Bob Martin was killed during a traffic stop on the Beeline highway; execution for his killer could be as soon as January PHOENIX (AZFamily)—The Arizona Attorney General is asking for an execution date to be set for a man convicted in the killing of an Arizona State Trooper over 30 years ago. On Aug. 15, 1995, Trooper Bob Martin was shot and killed while performing a traffic stop along the Beeline Highway.

Iran Crackdown on Christians Intensifies, Ministry Reports Dozens Killed and Hundreds Detained

September 3, 2026: A widening crackdown on Christians in Iran has reportedly resulted in the deaths of at least 33 Christian ministers and the detention of more than 130 others in recent months, according to Iran Alive Ministries, a Texas-based organisation supporting underground house churches in the country. Hormoz Shariat, founder of Iran Alive Ministries, told Baptist Press that at least 33 Christian ministers associated with the ministry had been killed amid intensified government pressure on Christians linked to the underground church movement.

Florida set to carry out 14th execution this year in the nation's busiest death chamber

MIAMI (AP) — A Florida man convicted of fatally shooting a 16-year-old girl who rejected his romantic advances and wounding two of her friends is set to be executed Tuesday in the first of three lethal injections scheduled this month in the state. Harold Gene Lucas, 74, is set to receive a three-drug injection at Florida State Prison near Starke starting at 6 p.m. He would be the 14th prisoner put to death this year in Florida, and Republican Gov. Ron DeSantis has already signed death warrants for two more executions set for later this September.

Indiana high court sets Nov. 5 execution date for convicted child killer

The court’s decision came a little more than two months after Indiana Attorney General Todd Rokita asked the justices to schedule Weisheit’s execution. State attorneys argued Weisheit had exhausted his state and federal appeals, had no active stay of execution, and could lawfully be put to death. The inmate’s attorneys opposed setting a date, saying they needed more time to pursue available legal proceedings and possible executive clemency. The defense additionally pointed to public records that it said showed the Indiana Department of Correction lacked the drugs needed to conduct an execution and had no lawful source from which to obtain them.

Egypt TV presenter and 11 others sentenced to death in major drugs case

Egyptian television presenter Sarah Khalifa and 11 others have been sentenced to death by hanging after being convicted of drug trafficking and rape, while nine defendants received life sentences and seven were acquitted. Egyptian television presenter Sarah Khalifa, 39, has been sentenced to death by hanging along with 11 other defendants after being found guilty in a drugs case involving a criminal gang accused of importing ingredients used to manufacture narcotics for sale.

Oklahoma Sets November Execution Date for Air Force Veteran Jim Pavatt Amid Claims of Wrongful Conviction

OKLAHOMA CITY — The Oklahoma Court of Criminal Appeals has scheduled the execution of Air Force veteran and longtime death row prisoner Jim Pavatt for Nov. 12, as his attorneys continue to challenge his conviction and contend that prosecutors relied on false arguments, disputed forensic evidence and an alleged confession they later described as bogus. Pavatt, who served nearly 22 years in the Air Force and rose to the rank of master sergeant, was convicted and sentenced to death for the 2001 killing of Rob Andrew in Oklahoma City. His execution is scheduled for the day after Veterans Day.

Hanging, confinement and the sentencing debate India won’t have

Ask anybody what a “death sentence” in India actually means, and the honest answer is that it can mean three quite different things. It can mean the noose—hanging by the neck until death; it can mean permanent confinement in jail—a term the courts now call imprisonment for the remainder of one’s natural life, and, far more often than either of the first two, it can simply mean delay in delivery of justice—a death sentence that is neither carried out nor commuted, waiting for completion of investigation, trial before the sessions court, hearing of a confirmation proceeding in a high court, appeal against conviction in the Supreme Court, or hearing of a mercy petition nobody has decided for years, sometimes for decades, until age or illness does what the state never got around to doing itself.