Legislative Expansion and Judicial Confusion: Uncertain Trajectories of the Death Penalty in India


The numbers and the politics of the death penalty in India tell very different stories, presenting complicated narratives for its future. The public reaction to instances of sexual violence and other offences over the last decade and the consequent political response has significantly strengthened the retention and expansion of the death penalty. This is reflected from the fact that that of all the death sentences that district courts impose, only about 5 per cent get confirmed in India’s appellate system. However, does this mean there is growing scepticism about the death penalty in the Supreme Court of India? Unfortunately, the answer is far from simple. An assessment of the death penalty in India’s appellate courts during the last decade will demonstrate that a crime-centric approach has hindered any principled discomfort with the death penalty or the manner of its administration. In particular, the Supreme Court has faltered in high-profile death sentence cases (i.e., offences against the state and sexual violence cases), and its track record of commutations has very little to do with principled considerations on sentencing. This paper argues that the political and judicial imagination of the death penalty, as a necessary part of the response to crime, creates significant and unique challenges for the path towards abolition.

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Published: 2022-09-01
Pages:67 to 78
Section:Special Issue: Death Penalty Politics
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How to Cite
Surendranath, A. . and Pathak, M. . (2022) “Legislative Expansion and Judicial Confusion: Uncertain Trajectories of the Death Penalty in India”, International Journal for Crime, Justice and Social Democracy, 11(3), pp. 67-78. doi: 10.5204/ijcjsd.2477.

Author Biographies

National Law University, Delhi

Anup Surendranath is a Professor of Law & the SK Malik Chair Professor on Access to Justice at National Law University, New Delhi (NLU Delhi). He is also the Executive Director of Project 39A, a criminal justice programme, at NLU Delhi. Project 39A provides extensive pro bono legal representation to prisoners sentenced to death in India in the Supreme Court of India and High Courts. Reearch on the death penalty at Project 39A has resulted in the Death Penalty India Report (socio-economic profile of India's death row prisoners), Matters of Judgment (an opinion study with 60 former judges of the Indian Supreme Court), Death Penalty Sentencing in Trial Courts (an analysis of trial court death sentences from three Indian states), Deathworthy (empirical work on mental illness and intellectual disability among death row prisoners in India and psychological consequences of life on death row). In addition to the death penalty, areas of focus at Project 39A are forensics, mental health in criminal justice, prevention of and accountability for torture, sentencing, and legal aid.

Maulshree Pathak is an advocate practicing in New Delhi and specialises in criminal cases. She graduated from National Law University, Delhi in 2015 and holds a degree in MSc in Criminology and Criminal Justice from the University of Oxford. She has previously clerked at the Supreme Court of India and has worked at the chambers of Senior Advocates practicing in the Supreme Court of India and the High Court of Delhi.