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However, it is important to consider the NCRB data on the number of death sentences awarded

annually. On average, NCRB records that 129 persons are sentenced to death row every year, or
roughly one person every third day. In Khade, the Supreme Court, took note of these figures and
stated that this number was “rather high”33 and appeared to suggest that the death penalty is
being applied much more widely than was envisaged by Bachan Singh. In fact, as subsequent
pages suggest, the Supreme Court itself has come to doubt the possibility of a principled and
consistent implementation of the ‘rarest of rare’ test.

iv) Judicial developments on the arbitrary and subjective application of the death penalty

Despite the Court’s optimism in Bachan Singh that its guidelines will minimise the risk of
arbitrary imposition of the death penalty, there remain concerns that capital punishment is
“arbitrarily or freakishly imposed”.34 In Bariyar, the Court held that “there is no uniformity of
precedents, to say the least. In most cases, the death penalty has been affirmed or refused to be
affirmed by us, without laying down any legal principle.”35

1.3.15 Such concerns have been reiterated on multiple occasions, where the Court has pointed
that the rarest of rare dictum propounded in Bachan Singh has been inconsistently applied. In this
context, it is instructive to examine the observations of the Supreme Court in Aloke Nath Dutta
v. State of West Bengal,36 Swamy Shraddhananda v. State of Karnataka (‘Swamy
Shraddhananda’),37 Farooq Abdul Gafur v. State of Maharashtra (‘Gafur’),38 Sangeet v. State of
Haryana (‘Sangeet’),39 and Khade.40 In these cases, the Court has acknowledged that the
subjective and arbitrary application of the death penalty has led “principled sentencing” to
become “judge-centric sentencing”,41 based on the “personal predilection of the judges
constituting the Bench.”

1.3.16 Notably, the Supreme Court has itself admitted errors in the application of the death
penalty in various cases.

Of those advocating abolition, the primary concerns were the fallibility of the Courts and
possibility of erroneous convictions; the absence of any penological purpose and the
discriminatory and arbitrary implementation of the death penalty. Notably, late former President
of India, Dr. APJ Abdul Kalam also sent a response to the consultation paper, highlighting the
discriminatory impact of the death penalty.

The first challenge to the constitutionality of the death penalty in India came in the 1973 case of
Jagmohan Singh v. State of U. P. (‘Jagmohan’)1. The petitioners argued that the death penalty
violated Articles 14, 19 and 21 of the Constitution of India. It was argued that since the death
sentence extinguishes, along with life, all the freedoms guaranteed under Article 19(1) (a) to (g),
it was an unreasonable denial of these freedoms and not in the interests of the public. Further, the
petitioners argued that the discretion vested in judges in deciding to impose death sentence was
uncontrolled and unguided and violated Article 14. Finally, it was contended because the
provisions of the law did not provide a procedure for the consideration of circumstances crucial
for making the choice between capital punishment and imprisonment for life, it violated Article
21. The decision of the US Supreme Court in Furman v. Georgia in which the death penalty was
declared to be unconstitutional as being cruel and unusual punishment was also placed before the
Constitution Bench.

In the case of Mithu v. State of Punjab2, the Supreme Court was confronted with the mandatory
sentence of death enacted in Section 303 of the IPC. The Court held that the mandatory death
sentence was unconstitutional, stating:

A standardized mandatory sentence, and that too in the form of a sentence of death, fails to take
into account the facts and circumstances of each particular case. It is those facts and
circumstances which constitute a safe guideline for determining the question of sentence in each
individual case.

The Court also noted that:

1
(1973) 1 SCC 20
2
(1983) 2 SCC 277 at para 16.
“It is because the death sentence has been made mandatory by section 303 in regard to a
particular class of persons that, as a necessary consequence, they are deprived of the opportunity
under section 235(2) of the Criminal Procedure Code to show cause why they should not be
sentenced to death and the Court is relieved from its obligation under section 354(3) of that Code
to state the special reasons for imposing the sentence of death. The deprivation of these rights
and safeguards which is bound to result in injustice is harsh, arbitrary and unjust.”3

A study conducted by Amnesty International PUCL (studying all death penalty cases from 1950-
2006 in India) has noted the lack of clarity and information available on the numbers of people
who have been executed in India, but suspected that the number of executions during this period
probably ran into thousands.4 There has, however, been a reduction in the number of people
being executed over time.

At the end of 2014, 98 countries were abolitionist for all crimes, seven countries were
abolitionist for ordinary crimes only, and 35 were abolitionist in practice, making 140 countries
in the world abolitionist in law or practice. The list of 140 countries includes three that formally
abolished the death penalty in 2015, i.e., Suriname, Madagascar and Fiji. countries are regarded
as retentionist, who still have the death penalty on their statute book, and have used it in the
recent past.5

3
Mithu v. State of Punjab, (1983) 2 SCC 277, at para 18.
4
Amnesty International, Lethal Lottery: The Death Penalty in India, ASA 20/07/2008, at page 24, available at
https://www.amnesty.org/en/documents/ASA20/007/2008/en/ (last viewed on 26.08.2015).
5
Annex II, Amnesty International, Death Sentences and Executions in 2014, ACT 50/001/2015

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