Bengaluru: Following the uproar and the widespread protests after the August 2024 rape and murder of a medical professional in Kolkata’s RG Kar hospital, there were demands for death penalty for the accused. The state government passed the Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill 2024 (awaiting presidential assent) which included mandatory death sentence for rape which results in death of the victim or if the victim is left in a vegetative state, despite such a mandatory sentence being unconstitutional.
On January 20, the Sealdah sessions court pronounced a life term for the convict, Sanjay Roy, and not a sentence of death. The judgment said that the case did not meet the stringent criteria for being classified as "rarest of the rare," per the Supreme Court’s Bachan Singh guidelines which requires courts to consider mitigating and aggravating factors before imposing the death penalty. Meanwhile, on the same day, in Kerala’s Neyyattinkara Additional District Sessions Court, Greeshma, who was convicted of murdering her partner, was sentenced to death. The judgment said that, “The balance of justice tilts in favour of the proved aggravating circumstances”.
In both cases, the courts failed to take into account any circumstances of the accused (both in mitigating the death sentence and in giving it), and to assess the probability of reformation, as indicated in their orders, said Neetika Vishwanath, Director (Sentencing), Project 39A, a criminal justice research and litigation centre part of the National Law University. “This is a subversion of the fair trial rights of the accused at sentencing, and does not adhere to the guidelines laid down in Bachan Singh which bind trial courts. In that sense, both decisions were arrived at in an arbitrary manner.”
The arbitrary sentencing processes in cases are not an exception– they are, in fact, the rule, Vishwanath added. According to the latest data published by Project 39A in its Death Penalty in India: Annual Statistics Report, sessions courts imposed 139 death sentences, higher than the yearly average since 2016. Despite the Supreme Court asking lower courts to be aware of mitigating and aggravating factors for death sentencing, trial courts sought or relied on no information about the accused, such as psychiatric evaluations, reports on conduct in jail and life circumstances in at least 90.5% of all death sentences in 2024, said the report.
As the Supreme Court did not confirm any death penalty for a second continuous year– commuting sentences of seven prisoners and acquitting one–there were 564 people living under a sentence of death in India at the end of 2024, the highest since the turn of the century.
Experts said that there are multiple reasons for higher sentencing including a lack of clarity in the law guiding the trial court’s powers to impose capital sentences, issues with gathering information on death row prisoners for the consideration of trial courts before sentencing, and the retention of the death penalty itself when 113 countries have abolished it.
131 people, on average, were sentenced to death each year by trial courts
On average, trial courts imposed 32 more death sentences each year between 2016 and 2024, compared to the 15 years since the beginning of this millennium. Sessions Courts imposed 1,180 sentences in the nine years till 2024 compared to 1,486 between 2000 and 2015.
“The trial courts are not being cautioned or reprimanded by the higher courts for imposing death sentences without considering various factors,” said Colin Gonsalves, a human rights lawyer. “NALSA [National Legal Services Authority] also needs to intervene to change the approach of trial courts in death sentencing.”
In 2024, nearly one in four (130) death row prisoners were in UP, the most populous state in India that also has the highest number of prisoners. Gujarat (71), Maharashtra (42) and West Bengal (37) followed UP.
UP’s sessions courts imposed 34 death sentences in 2024, the most in the country and higher than the state’s average since 2016. Between 2021 and 2024, at least 33 convicts have been sentenced to death each year by UP’s session courts. Kerala followed with 20 death sentences in 2024 where 14 people were sentenced to death in a single case involving the murder of a political party rival, showed the report. This was half the reported death sentences imposed by trial courts in Kerala in the nine year period.
The 1980 Bachan Singh judgement provided a framework where the trial courts were expected to consider the circumstances of the offense and the offender before imposing a death sentence. It can be “imposed not only when the aggravating factors outweigh mitigating ones, but also when the alternative of life imprisonment is unquestionably foreclosed,” said a May 2020 report by Project 39A on death penalty sentencing in trial courts of MP, Delhi and Maharashtra.
The Bachan Singh guidelines are at best indicative, and do not clarify important questions such as the purpose of aggravating and mitigating circumstances and how they are to be collected, presented and considered, said Lakshmi Menon, Associate (Sentencing) at Project 39A.
“The law guiding the trial court’s discretion/powers to impose capital sentences is vague and fuzzy,” said Menon. “In most death-eligible cases, trial courts can choose between life imprisonment (which, under the CrPC–Code of Criminal Procedure–and Supreme Court jurisprudence is the default punishment to be imposed) and death penalty (which can be imposed if there are ‘special reasons’ that warrant its imposition). What are these ‘special reasons’? The [erstwhile] CrPC does nothing to clarify that.”
The [death penalty] data over the years shows that trial courts are going on an instinctive track of imposing the death penalty, said Gonsalves. “They are turning to retributive justice which is savage. At the SC level the court is considering other mitigating factors due to which they have not confirmed death sentences or commuted it as data show.”
‘Multiple reasons for trial courts not complying to directions’
Trial courts not considering offender’s information before sentencing have continued despite the Supreme Court, in Manoj v. State of Madhya Pradesh (2022), directing them to consider relevant materials while deciding the sentence. The court said that there is an “urgent need to ensure that mitigating circumstances are considered at the trial stage, to avoid slipping into a retributive response to the brutality of the crime”.
As examples, the RG Kar and Greeshma case show that the reasoning behind both judgments give away their weaknesses, said Vishwanath. In the RG Khar case, the sentencing order had no reasons pertaining to the case or the offender as to why the death sentence was not given, while in Greeshma’s case, not only did the case entirely disregard her personal circumstances, but also drew from highly misogynist narratives to reinforce aggravated criminality to justify the death sentence, Vishwanath said.
The Project 39A report showed that death sentences were imposed on the same day, or within one day of conviction, in nearly a third of death penalty cases at the trial courts in 2024. Sixty six of 139 death sentences in 39 cases were imposed within two to seven days from conviction. Greeshma was sentenced three days after the verdict, while Roy, in the RG Khar case, was sentenced after two days.
IndiaSpend had reported that, in September 2022, the Supreme Court decided to refer to a five-judge bench the task of framing guidelines regarding potential mitigating circumstances to be considered while imposing a death sentence. The Supreme Court was yet to hear the matter in 2024, although submissions before the Constitution Bench were called for and placed before the Bench in 2023, said the Project 39A death penalty report.
There are multiple reasons for trial courts not complying to earlier judgements. According to Vishwanath, death penalty judgments by coordinate benches [which should ideally follow decisions of earlier coordinate benches] have, prior to and post the Manoj case, taken an entirely different route, even reasoning that such information pertaining to mitigation is not necessary. She said, “trial courts at this moment quite literally have an option to choose to ignore directions of a higher court”.
Further, gathering information on the prisoners for trial courts, through social workers or mental health professions, is limited due to a staff shortage, and they have to rely on reports prepared by a probation officer and a jail superintendent.
IndiaSpend had reported that the cash bail scheme that the union government initiated in 2023 to support poor prisoners also suffers from lack of provisioning of social workers who could support an already stretched judicial system.
The Supreme Court, since 2021, has allowed social workers to meet prisoners to gather information, said Vishwanath. “There are also other initiatives taken by the Court to fix the state of affairs, such as a referral order to a Constitution bench to formulate guidelines for a meaningful capital sentencing hearing. However, the Supreme Court does not have any principled guidance behind its decisions,” and no guidelines on how a court should assess information about an offender, she explained.
As for High Courts, the problem plaguing them is a lack of disposal of death penalty cases despite the high number of pending proceedings, in turn subjecting the prisoner to a prolonged duration on death row, she added.
New laws widen scope of death penalty
A 2015 Law Commission report had recommended abolition of the death penalty, except in terrorism-related offences and waging war, and it had hoped that India would move towards absolute abolition of the death penalty. But India continues to be one of the 55 countries that retain the death penalty for ordinary crimes, according to Amnesty International’s 2023 data.
There are 144 countries that are abolitionist in law or practice. Zimbabwe abolished the death penalty in December 2024, increasing the total abolitionist countries from 112 to 113. Among neighboring countries only Nepal has abolished the death penalty, while Sri Lanka, in practice, is abolitionist, which means that they have not executed anyone in the last 10 years, and are believed to have an established practice or policy of not carrying out executions.
With the introduction of new criminal laws in India in July 2024, the scope of death penalty has widened. The Bharatiya Nyaya Sanhita introduced new offences punishable with death, including mob lynching leading to death, organised crime leading to death and a terrorist act leading to death.
IndiaSpend has written to the Union government’s departments of law and justice and the National Legal Services Authority for their comments on trial court sentencing, abolition of the death penalty, the bill on mandatory death sentencing in West Bengal, and the widening of the scope of death penalty in the new criminal laws. We will update the story when we receive a response.
“Despite the SC’s Constitution Bench decision in Shatrughan Chauhan v. Union of India (2014) that had held that no hard and fast time period can be prescribed for the same, the BNSS [Bharatiya Nagarik Suraksha Sanhita] lays out a timeline for death row prisoners to file petitions,” said Menon. “This is heavily concerning and constitutionally suspect considering they [death row prisoners] are bereft of means to gather all relevant materials and prepare a petition.”
Source: indiaspend.com, Shreehari Paliath, March 29, 2025
"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
but by the punishments that the good have inflicted."
— Oscar Wilde
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