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)

China executes 11 members of gang who ran billion-dollar criminal empire in Myanmar

China has executed 11 members of the notorious Ming family criminal gang, who ran mafia-like scam centers in Myanmar and killed workers who tried to escape, Chinese state media reported on Thursday.  The Ming family was one of the so-called 4 families of northern Myanmar — crime syndicates accused of running hundreds of compounds dealing in internet fraud, prostitution and drug production, and whose members held prominent positions in the local government and militia aligned with Myanmar’s ruling junta. 

Florida | Man convicted of leaving girl to be eaten by gators avoids death penalty

After about 4 hours of deliberations, jurors on Friday recommended Harrel Braddy should be sentenced to life in prison for the 1998 killing of 5-year-old Quantisha Maycock.  A South Florida man who dropped off a 5-year-old child in the Everglades to be eaten alive by gators nearly 3 decades ago was given a second chance at life as jurors recommended he should spend the rest of his life behind bars instead of being sent to death row. After about four hours of deliberations, jurors on Friday recommended Harrel Braddy should be sentenced to life in prison for the 1998 killing of 5-year-old Quantisha Maycock. 

Federal Judge Rules Out Death Penalty for Luigi Mangione in UnitedHealth CEO Killing

NEW YORK — A federal judge has dismissed two charges against Luigi Mangione, the man accused of assassinating UnitedHealthcare CEO Brian Thompson, effectively removing the possibility of the death penalty in the high-profile case.  U.S. District Judge Margaret Garnett ruled Friday that the murder charge through use of a firearm — the only count that could have carried a capital sentence — was legally incompatible with the remaining interstate stalking charges against Mangione.

Georgia parole board suspends scheduled execution of Cobb County death row prisoner

The execution of a Georgia man scheduled for Wednesday has been suspended as the State Board of Pardons and Paroles considers a clemency application.  Stacey Humphreys, 52, would have been the state's first execution in 2025. As of December 16, 2025, Georgia has carried out zero executions in 2025. The state last executed an inmate in January 2020, followed by a pause due to COVID-19. Executions resumed in 2024, but none have occurred this year until now. Humphreys had been sentenced to death for the 2003 killings of 33-year-old Cyndi Williams and 21-year-old Lori Brown, who were fatally shot at the real estate office where they worked.

California | Convicted killer Scott Peterson keeps swinging in court — but expert says he’s not going anywhere but his cell

More than two decades after Laci Peterson vanished from her Modesto, California, home, the murder case that captivated the nation continues to draw legal challenges, public debate and renewed attention. As the year comes to a close, Scott Peterson, convicted in 2004 of murdering his pregnant wife and their unborn son Conner, remains behind bars, serving life without the possibility of parole. His wife disappeared on Christmas Eve in 2002, and a few months later, the remains of Laci and Conner were found in the San Francisco Bay.

Death toll in Iran protests could exceed 30,000

In an exclusive report, the American magazine TIME cited two senior officials from the Iranian Ministry of Health, who stated that the scale of the crackdown against protesters on January 18 and 19 was so widespread that 18-wheeler trailers replaced ambulances. In its report, based on testimony from these two high-ranking officials, TIME revealed statistics that differ vastly from the official narrative of the Islamic Republic.

Oklahoma board recommends clemency for inmate set to be executed next week

A voting board in Oklahoma decided Wednesday to recommend clemency for Tremane Wood, a death row inmate who is scheduled to receive a lethal injection next week at the state penitentiary in McAlester.  Wood, 46, faces execution for his conviction in the 2001 murder of Ronnie Wipf, a migrant farmworker, at an Oklahoma City hotel on New Year's Eve, court records show. The recommendation was decided in a 3-2 vote by the Oklahoma Pardon and Parole Board, consisting of five members appointed by either the governor or the state's top judicial official, according to CBS News affiliate KWTV. Oklahoma Gov. Kevin Sitt will consider the recommendation as he weighs whether to grant or deny Wood's clemency request, which would mean sparing him from execution and reducing his sentence to life in prison without the possibility of parole.

The US reporter who has witnessed 14 executions: ‘People need to know what it looks like’

South Carolina-based journalist Jeffrey Collins observed back-to-back executions in 2025 after the state revived the death penalty following a 13-year pause Jeffrey Collins has watched 14 men draw their final breaths. Over 25 years at the Associated Press, the South Carolina-based journalist has repeatedly served as an observer inside the state’s execution chamber, watching from feet away as prison officials kill men who were sentenced to capital punishment. South Carolina has recently kept him unusually busy, with seven back-to-back executions in 14 months.

Florida's second execution of 2026 scheduled for February

Florida’s second execution of 2026, a man convicted of killing a grocery story owner, will take place in February. Gov. Ron DeSantis signed the death warrant Jan. 23 for Melvin Trotter, 65, to die by lethal injection Feb. 24.  Florida's first execution will take place just a few weeks earlier when Ronald Palmer Heath is set to die Feb. 10. Trotter was convicted of first-degree murder and sentenced to death in 1987 for strangling and stabbing Virgie Langford a year earlier in Palmetto. 

China executes another four members of powerful Myanmar-based crime family

China has executed another four members of a powerful Myanmar-based crime family that oversaw 41 pig butchering scam* compounds across Southeast Asia.   The executed individuals were members of the Bai family, a particularly powerful gang that ruled the Laukkai district and helped transform it into a hub for casinos, trafficking, scam compounds, and prostitution.  China’s Supreme People’s Court approved the executions after 21 members were charged with homicide, kidnapping, extortion, operating a fraudulent casino, organizing illegal border crossings, and forced prostitution. The court said the Bai family made over $4 billion across its enterprise and killed six Chinese citizens.