Judicial Discretion and the Death Penalty: Revisiting

Bachan Singh in the Context of India and U.S.

MONIKA PRIYADARSHINI, SRIDEVI S.

ABSTRACT:
Judicial discretion in death penalty adjudication is inextricably linked with constitutional mandates, moral challenges, and international human
rights norms. This study aims to undertake a critical analysis of the path of such discretion in the Indian legal tradition with particular reference to
the jurisprudential shift indicated by Bachan Singh v. State of Punjab (1980), which articulated the "rarest of rare" doctrine as a bulwark against
arbitrary capital punishment. While the said judgment sought to establish principled checks, subsequent judicial perceptions have revealed
contradictions, demonstrating the continuity of tension between normative principles and real adjudication.

Employing a doctrinal research methodology, the study examines the theoretical underpinnings and functional efficacy of the Bachan Singh model
and supplements it with an empirical review of trial court sentencing practices. It also identifies procedural deficits, such as incoherent sentencing and
neglecting to appropriately consider extenuating factors, that impede the doctrine's consistent application. Moreover, with a comparative analysis of
the capital sentencing system in the United States characterized by statutory limitations and jury participation—the study draws implications
regarding the mechanisms through which controlled discretion can enhance transparency and reduce arbitrariness

This paper finally calls for reviewing India's sentencing policy to include greater judicial accountability, implementation consistency, and
compatibility with prevailing human rights standards. This paper contends that reforms are necessary to preserve the constitutional doctrine of
substantive due process in capital cases.

Keywords: Bachan Singh, comparative criminal law, death penalty jurisprudence, Judicial discretion.

[Link]
As per Black’s Law Dictionary, Judicial discretion can be descried as “The exercise of judgment by a judge or court
based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act
or not act when a litigant is not entitled to demand the act as a matter of right” [1]. Judicial discretion plays a
significant role in death sentencing, as the power vested in the judge to assess the gravity of crime and decide
whether the death penalty is appropriate or not, which triggers or raises debate over its ethical, legal, and human
rights implications.
Before the landmark case of “Bachan Singh vs. State of Punjab” [2], there were no appropriate guidelines
prescribed for the death penalty imposition cases; therefore, judges were granted broad discretionary power in
determining its enforcement, which led to issues over its application's consistency and fairness. The ruling
established the "Rarest of Rare" doctrine, which courts must adhere to when imposing death sentences and
redefined the extent of judicial discretion in such cases.
Despite having significant guidelines for death penalty cases, the question remains the same regarding the fairness,
consistency, and application of the ‘Rarest of Rare’ doctrine. However, the goal of the Supreme Court's (SC) ruling
in this case was to ensure that the death penalty would only be applied in the most life-threatening circumstances.
Determining whether it's appropriate can be challenging.
With a focus on the Bachan Singh case framework, the research attempts to critically assess the development and
efficacy of judicial discretion in death sentencing. It also examines how the guidelines established in the ruling have
been applied in later cases and why the role of judicial discretion in death sentencing is still up for debate.
Additionally, the study examines sentencing guidelines, judicial rationale, and consistency to evaluate the discretion
of judges in death penalty cases in India and the U.S. By evaluating the structured guidelines and jury involvement
in the U.S, the research derives insights for refining India's judicial discretion framework.
The research addresses some of the key issues:
• How has the Bachan Singh case redefined the imposition of the death sentence in India?
• What challenges arise from the procedural flaws that affect the application of judicial discretion in death
sentencing?
• How has the ‘rarest of rare’ principle evolved since Bachan Singh, and is it being consistently followed?
• How does the judicial discretion differ between India and the USA in the imposition of the death penalty,
and what lessons can be drawn from this comparison?
The study uses a Doctrinal Research Methodology, analysing the Bachan Singh judgment, subsequent case law, and
appropriate legal measures to evaluate the function of judicial discretion in implementation, and empirical studies
on the application of the death penalty, including sentencing patterns observed by trial courts. Additionally, the
study undertakes a comparative analysis of judicial discretion in death sentencing between India and the U.S.,
examining the differences in legal frameworks, judicial reasoning, and sentencing patterns.

The study first highlights the Bachan Singh Sentencing framework before pointing out any discrepancies between
the theory and the way death sentences are applied in India, followed by a comparative analysis of judicial
discretion in death sentencing between India and the U.S. Finally, the study makes suggestions for filling in the
gaps between theory and practice that have been found.

[Link] BACHAN SINGH SENTENCING FRAMEWORK

According to legislative policy described in the CrPC Section 354(3), it mandates that "special reasons" for
deciding on the death penalty instead of life in prison or a period of years in prison be documented by the
sentencing court [3]. If the offense allows for such alternative sentences, the court in Bachan Singh established
complete sentencing guidelines to help judges apply their discretion when determining whether to apply the death
penalty or not.

Examining the choice to use the death penalty, the S.C first examined the significance of the phrase "special
reasons" under “Section 354(3)” in the “Rajendra Prasad vs. State of Uttar Pradesh” [4]. According to the Court
“special reasons" indicated that courts may only take into consideration the criminal's circumstances; only
aggravating aspects not mitigating ones rather than the actual crime.
The concept of weighing mitigating elements (related to the criminal) against aggravating ones (related to the
crime) was introduced by the “Bachan Singh” sentencing framework. In actuality, the Court's list of aggravating as
well as mitigating factors is intended to be indicative rather than exhaustive to preserve judicial discretion.
The aggravating factors include:
• Extreme brutality and prior planning
• Exceptional depravity
• Murder of members of the Armed Forces or Public Servants
• Murder of a Person Acting in Lawful Duty

Among the mitigating factors are:

• The accused's age
• Reformation and Rehabilitation
• Extreme Mental or Emotional Disturbances
• Probability of non-reoffending
• Moral justification
• Acted Under Duress or Domination
• Mental Defect

In the last phase, the Court will decide whether in cases where the contributing factors outweigh the mitigating
ones, any penalties other than death would be appropriate. If the Court finds out that no other sentencing option is
adequate to punish the crime, then the case is classified as "rarest of rare". The death sentence is only appropriate in
these circumstances [5].

III. INTERPRETATION OF GUIDELINES & CHALLENGES FACED BY INDIAN TRIAL COURTS

The S.C. has considered the "rarest of rare" theory in the “Machhi Singh v. State of Punjab”, stating that the death
penalty is only effective when society as a whole, regardless of individual opinions, demands it. To determine the
appropriate sentence, the Court has also specified elements including the victim's name and the level of the offence
[6].
The Contradictory point of Supreme Court’s view had been noted in the case of “Rajvi v. State of Rajasthan”
where Court has prioritized the nature of offence over the circumstances of the offender considering the death
penalty which led to directly contradicting the Bachan Singh principle which requires considering the offender’s
background [7].
A Conflicting View on the Offender’s Age was seen in the case of “Ramnaresh v. State of Chhattisgarh” where the
Court has imposed life imprisonment for gang rape and murder considering the young age (20-30 years) of the
offenders as there is a chance for reform. But in the case of “Dhananjoy Chatterjee v. State of West Bengal”, the
Court has imposed the death penalty on a 27y/o; thus, it highlights the inconsistency in judgments regarding age.
If we have a look at the Conflicting views of the Court in terms of the Nature of the Offense, as in the case of
“Bhagwan Das v. State (Delhi NCT)”, an honour killing was considered a "rarest of rare" crime, supporting the
death sentence. Conversely, in the case of “Dilip Premnarayan Tiwari v. State of Maharashtra”, the Court granted
the death penalty for a caste-eased killing considering the influence of deep-rooted social issues on the offender’s
mind.
Considering these cases, we can easily identify the gaps in the Bachan Singh Guidelines
• Inconsistent Application of the "Rarest of Rare" Standard
• Failure to consider mitigating Factors
• Discretion and Subjectivity in Sentencing
• Caste and Class Bias in Sentencing
• Vague Interpretation of "Rarest of Rare"

IV. CHALLENGES FACED BY INDIAN TRIAL COURTS

The “Death Penalty in India: Annual Death Penalty Report” [8] examines 215 capital case judgments from trial
courts in “Madhya Pradesh” “Maharashtra” and “Delhi” between 2000 and 2015 (90 Maharashtra, 82 Madhya
Pradesh and 43 Delhi). Basically, highlights the flaws in death sentencing stemming from the Bachan Singh
judgment and subsequent inconsistencies in Supreme Court rulings.
• Non-consideration of Mitigating Factors/ The dominance of Brutality
• Reliance on Collective Conscience
• Non-consideration of Probability of Reformation
• Failure to consider Life Imprisonment
• Reliance on Precedents
• Penological Factors

V. COMPARATIVE ANALYSIS OF JUDICIAL DISCRETION IN DEATH SENTENCING: INDIA & U.S.

Judicial discretion is at the heart of administering the death penalty, shaping sentencing decisions through
interactions of legal commands, moral and ethical concerns, and social issues. The extent and manner in which
discretion is exercised differ significantly between legal systems shaping the

administration of capital punishment. In India judicial discretion is guided by the ‘rarest of rare’ doctrine
established in “Bachan Singh v. State of Punjab (1980)” whereas in the United States discretion is largely
influenced by jury decisions and statutory guidelines as seen in “Gregg v. Georgia (1976)”.
While doing the comparative study the focus will be on the key aspects that shape judicial discretion in death
sentencing cases which includes;
• Legal Framework and Constitutional Provisions
• Sentencing Guidelines and judicial Discretion
• Mitigating and Aggravating Factors
• Arbitrariness and Socio-Economic Disparities
• Clemency Powers and Judicial Review
• Execution Methods and Human Rights Concerns
Through this study, the aim is to assess the extent to which judicial discretion serves the interests of justice and
whether it ensures fair and consistent sentencing outcomes.
A. Legal Framework and Constitutional Provisions
Although the death penalty is still a recognized form of punishment in both India and the U.S., its use is strictly
limited by constitutional protections.
The right to life and personal liberty in India is guaranteed under Article 21 of the Constitution, unless there are
legal restrictions. With a focus on judicial rationale in sentencing, Section 354(3) of the “Code of Criminal
Procedure (CrPC)”, 1973, requires courts to document particular reasons for applying the death penalty. The S.C,
through cases like “Jagmohan Singh v. State of Uttar Pradesh (1973)” and “Bachan Singh v. State of Punjab
(1980)”, has upheld

the constitutional validity of the death penalty while requiring courts to apply the ‘rarest of rare’ principle.
 On the other hand, the Eighth Amendment of the U.S. Constitution prohibits unreasonable and cruel punishment,
which has caused the death penalty to come under intense legal scrutiny. Jurisprudence surrounding the death
penalty has also been impacted by the Fourteenth Amendment, which ensures equal protection and due process.
The United States S.C declared existing death penalty statutes unconstitutional in “Furman v. Georgia (1972)”
because they applied arbitrarily. This led to amendments that included guided discretion in death sentencing in
instances such as Gregg v. Georgia (1976) [9].
B. Sentencing Guidelines and Judicial Discretion
The role of judicial discretion differs markedly between India and the U.S. due to procedural and institutional
variations in sentencing.
Judges in India have the exclusive authority to impose sentences; in order to decide if a case is "rarest of rare," they
must consider both aggravating and mitigating circumstances. Factors that include the brutality of the crime,
criminal history, socio-economic circumstances, and potential for reform influence the sentencing decision.
However, this discretion has led to inconsistency and subjectivity as different judges may interpret ‘rarest of rare’
differently.
Conversely, Death sentencing in the United States involves both the judge and the jury. Most states follow a
bifurcated trial system, where the jury first determines guilt and then deliberates on sentencing based on statutory
guidelines. Judges have limited power to override jury verdicts, though some states allow judicial override, as seen
in Hurst v. Florida (2016) which invalidated Florida’s practice of allowing judges to impose death sentences
without a unanimous jury recommendation.
C. Role of Mitigating and Aggravating Factors

Both jurisdictions consider mitigating and aggravating factors, but their application differs due to legal
frameworks.
In India mitigating factors include the convict’s age socio-economic background, mental health, and possibility of
reform, however, the type of offense, past criminal history, and social impact are aggravating considerations.
However, judicial subjectivity remains a concern, as highlighted in “Ravji v. State of Rajasthan (1996)”, wherein
the Santosh Bariyar case (2009) rectified the Supreme Court's failure to take mitigating factors into consideration.
In the United States, sentencing frameworks require juries to weigh statutory aggravating factors (e.g.,
premeditation, multiple victims, cruelty) against mitigating aspects (e.g., mental illness, absence of criminal
history). The jury’s decision must ee unanimous ensuring a structured approach to discretion.
D. Arbitrariness and Socio-Economic Disparities in Sentencing
Concerns about arbitrary and socioeconomically biased death sentences are present in both India and the United
States.
In India, studies suggest that death sentences disproportionately affect marginalized and economically
disadvantaged individuals, often due to inadequate legal representation. The “Death Penalty India Report (2016)”
found that a majority of death row inmates belong to lower socio-economic backgrounds, raising concerns over
judicial bias.
Similarly, in the United States, capital sentencing has been criticized for racial and economic disparities.
According to studies, the death sentence is more likely to be applied to African American defendants and those who
kill white victims. The United States, S.C acknowledged this challenge in McCleskey v. Kemp (1987) but reduced to
overturn a death sentence despite statistical evidence of racial bias.
E. Clemency Powers and Judicial Review

Both India and the U.S. provide avenues for executive clemency, though their scope and judicial review differ.
Articles 72 and 161 of the Indian Constitution, grant clemency to the President and Governors of India,
respectively. However, the Supreme Court has expanded judicial review over mercy petitions, as seen in
“Shatrughan Chauhan v. Union of India (2014)”, where inordinate delays in execution were held to violate the
convict’s rights.
In the United States, clemency powers rest with state Governors and the President, but judicial review is limited.
For instance, Ohio Governor Richard Celeste (1991) commuted multiple death sentences over fairness concerns,
but such interventions remain rare.
F. Execution Methods and Human Rights Concerns
 Execution methods reflect broader human rights debates surrounding the death penalty. According to Section
354(5) CrPC, hanging is the approach to execution used in India. In the U.S., methods vary by state, including
lethal injection, electrocution, firing squad, and gas chamber. Recent challenges to lethal injection protocols (e.g.,
Glossip v. Gross (2015) highlight concerns over botched executions and cruel treatment [10].
The exercise of judicial discretion in capital sentencing remains a complex issue in both India and the United
States. While India relies on the ‘rarest of rare’ doctrine judicial subjectivity remains a concern. In contrast the U.S.
employs a jury-eased system with statutory guidelines but racial and socio-economic biases persist. Both
jurisdictions are witnessing a gradual shift away from capital punishment reflecting evolving human rights
standards. Ensuring consistency fairness and transparency in sentencing remains a pressing challenge for both legal
systems.

VI. CONCLUSION
Since deciding whether life in prison is "unquestionably foreclosed" and evaluating aggravating and mitigating
considerations are subjective and judge-centric processes, the pursuit of consistency in death sentencing has shown
its fundamental problems. This leads to a wide range of judicial discretion and, consequently, inconsistent
implementation of death sentences.
A comparison of judicial discretion in death penalty cases between the US and India reveals important
distinctions as well as common issues. While India relies on the ‘rarest of rare’ doctrine, granting judges broad
discretion in determining capital punishment, the U.S. employs a jury-based sentencing framework with statutory
guidelines. Despite structural differences, both systems struggle with arbitrariness, socio-economic and racial
biases, and inconsistencies in sentencing. The U.S. model attempts to curtail excessive judicial discretion through
jury deliberations and structured guidelines, yet disparities persist. Similarly, India's subjective interpretation of the
‘rarest of rare’ doctrine results in variations in sentencing outcomes. This comparative study suggests that structured
sentencing guidelines with clearly defined mitigating and aggravating factors could help in achieving greater
consistency in capital punishment decisions.
Thus, the only solution left with us regarding consistency in death sentencing in India is a need for a Re-
evaluation of the Sentencing Framework to ensure fair and consistent sentencing without any discretion or limited
discretion. Using their "judicial mind" to apply the evidence and reach a decision is a crucial task assigned to the
judges. Removing this authority might be bad for the system. Therefore, our primary objective should be to
minimize the use of discretion; therefore, for trial courts to exercise judicial discretion in situations involving the
death penalty, they need to be given more consistent guidelines.
If this framework remains inconsistent as discussed then abolition or a reconsideration of the criteria for death
sentences could be the next step. The scope of Death Sentencing should be restricted making sure it is only imposed
when it is absolutely necessary and after exhaustive consideration of all possible mitigating factors.

REFERENCE

[1] B. A. Garner, Black’s Law Dictionary, St. Paul: West, 2004, p. 1405.

[2] Bachan Singh v. State of Punjab, AIR 1980 SC 898.[Link]

[3] Code of Criminal Procedure, 1973, New Delhi: Professional Book Publishers, 2024.
[Link]

[4] Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 SC 916. [Link]

[5] P. Verma, “The Inevitable Inconsistency of the Death Penalty in India,” Cambridge Law Review, vol. 6, no. 2, p. 27–65, 2021.
[Link]

[6] Machhi Singh and Others vs State of Punjab, AIR 1983 SC 957.[Link]
[7] Ravji v. State of Rajasthan, AIR 1996 SC 787.[Link]

[8] P. 39A, “Death Penalty Sentencing in Trial Courts,” National Law University, Delhi, New Delhi, 2020. [Link]

[9] J. M. Kakade, “Comparative Study on Capital Punishment India and USA,” International Journal of Research Publication and Reviews, vol. 5,
no. 3, p. 7643–7649, 2024. [Link]

[10] [Link]
Raghav, “Comparative Analysis of The Death Penalty: The Historical Perspective and The Methods of Execution,” International Journal of
Management & Humanities, vol. 6, no. 3, p. 1136–1154, 2023. [Link]
 AUTHOR PROFILE

Monika Priyadarshini is currently pursuing a General LL.M. at the School of Law, RV University, Bangalore,
for the academic year 2024–2025. She completed her B.A. LL.B. from KLE Law College, Bengaluru, where she
developed a strong foundation in legal studies. With a keen interest in legal research and policy analysis, Monika
focuses on contemporary issues in constitutional and criminal law. Residing in Bangalore, she is committed to
contributing meaningfully to the Indian legal system through scholarly work and informed perspectives. Her
academic journey reflects a deep dedication to understanding and shaping the future of law in India.

Sridevi S is an LL.M. candidate at RV University, Bengaluru, and a graduate of BBA LL.B. (Hons.) from
Karnataka State Law University, Hubballi. She brings over 1.5 years of litigation experience before the High
Court of Karnataka and trial courts, having worked on writ petitions, criminal matters, and environmental
disputes. Her academic interests include environmental law, constitutional law, and access to justice. She has
published and presented papers on judicial activism, online dispute resolution, and wildlife conservation.
Combining practical legal experience with scholarly insight, Sridevi is committed to advancing public interest
law with a strong focus on environmental protection and legal reform.