Lakshmi Menon

Recent developments in the Indian Supreme Court’s death penalty jurisprudence (see here and here) suggests a shift in approach towards recognising the centrality of reformation in sentencing. While these developments may suggest that the Court is beginning to develop a better grasp over reformation and rehabilitation, its substantive engagement with the concept remains as deficient as ever. Even as the Court undertook a momentous shift towards reform in sentencing in 2021 and 2022– by seeking reports on the accused’s jail conduct and psychological assessment, and by directing trial courts to elicit such information, the Court in the same year (2022) imposed life imprisonment barring the possibility of remission- a punishment incompatible with reformation and rehabilitation- as the commuting sentence throughout all 7 commutations. Using these statistics as an example, I argue that the Court’s approach to reformation and rehabilitation as a concept (required to guide the meaningful development of its capital sentencing law) remains as piecemeal and deficient as ever. These developments are in face of the fact that a Constitution Bench (cognizant of the lawlessness and arbitrariness of capital sentencing) is set to frame guidelines for a ‘real, meaningful and effective’ capital sentencing process, and the time required at sentencing to fulfill the same- 42 years after Bachan Singh v. State of Punjab had laid down ‘broad guidelines’ to guide the same. However, persisting deficiencies on the Court’s conceptualisation of reformation and rehabilitation are a cause of concern for the overall direction that future developments may take. 

A brief history of the Court’s engagement with reform in death penalty sentencing

The constitutionality of the death penalty had been upheld in Bachan Singh v. State of Punjab by a Constitution Bench of the Court in 1980, subject to the requirement that courts would impose death sentences in adherence to the Court’s guidelines. Reformation formed a central aspect for these guidelines, where the decision placed the burden on the State to demonstrate the improbability of reform in the accused. A subsequent decision of the Court interpreted the Bachan Singh requirement (that life imprisonment was “unquestionably foreclosed”) to mean that the purpose of choosing life over death was for cases where reform was possible. This requirement was taken a step further in 2018, when the Supreme Court tied the foreclosure of life imprisonment in capital cases to the possibility of reform, rehabilitation and ‘social integration’.

Empirical and doctrinal research has located and criticised the Supreme Court’s Bachan Singh decision for its vagueness, and for leaving several questions on the substance of its guidelines and the procedures to be adopted in capital sentencing unaddressed. Crucially, these gaps have led to a crisis of lawlessness in capital sentencing across India’s courts, where there is no consistent approach or principled framework guiding the imposition of the death penalty. Pertinently, empirical evidence regarding the demographics of prisoners sentenced to death were unavailable until 2016. A study published in 2016 reveals that these death sentences (imposed as they are in an unprincipled and lawless manner) have overwhelmingly been imposed upon people hailing from communities marginalised by caste, religion and economic status. 

Yet, it was not until 2021 that the Court actively acknowledged the gap in information at sentencing to assess the probability of reform. Thus, in 2021, the Supreme Court issued multiple orders directing social workers and psychologists to prepare life history reports of the accused, and directed the State to provide jail conduct reports. In a much lauded decision, the Court in Manoj v. State of Madhya Pradesh (2022) passed a series of directions to trial courts, requiring them to collect jail conduct and psychological examination reports as part of assessing reform. Although this was seen as a welcome move,  I argue that the Court’s ever increasing imposition of life imprisonment without remission sentences (“LWOR”) demonstrates both inconsistency from its newly professed commitment to reformation and rehabilitation, and the ever persisting deficiency in its understanding of reformation.

The Supreme Court and life imprisonment without remission

Death penalty commutation decisions at the Supreme Court require the court to undertake a two step process. In its first step, the Court must decide whether or not to confirm the death sentence itself. Amongst other considerations, the Supreme Court is required to assess the probability of an accused’s reform and in the face of such a probability, the Court must select the alternative punishment of life imprisonment. In the second step, the Court must either choose between life imprisonment with the possibility of remission (simple life for brevity) or exclude remission (which may be for a fixed term, or may extend to the remainder of the prisoner’s life) (hereinafter “LWOR”). 

The Supreme Court’s sentencing law in the second step of this commutation process- of choosing LWOR over simple life – remains wholly deficient. While the Court has often commuted the majority of death sentences that it hears, it had begun to commute these sentences to life imprisonment barring the possibility of any remission or release (see here and here) at the turn of the century. In 2008, the Court in Swamy Shraddhananda v. State of Karnataka found that High Courts and the Supreme Court could curtail the State’s remission powers whilst commuting a death sentence to that of life imprisonment. The validity of this category of sentences was later upheld by the majority in a Constitution bench decision in Union of India v. Sriharan. 

Both decisions fail to provide any guidance whatsoever in deciding which prisoners may be eligible for LWOR. Sriharan and Shraddhananda focus solely on offence based considerations (such as its gravity and impact). Furthermore, whilst the former justifies this sentence on deterrence related considerations, Shraddhananda does so on the grounds that some offences may not warrant death, but a life sentence with the possibility of remission would be “disproportionately inadequate”. Whilst accounting for the possibility of the prisoner’s reform at sentencing is mentioned but altogether dismissed by Sriharan, Shraddananda does not mention rehabilitation at all. Secondly, the Court’s failure to account for an offender’s circumstances whilst imposing LWOR dismisses any consideration of reformation and rehabilitation, given that this question is tied to the prisoner and their circumstances. Through these decisions, the Court (without legislative backing) effectively introduced LWOR as a punishment in India, wherein the court was free to impose the same without principled guidance, and in a manner where reformation could be completely shrugged off during sentencing. This state of affairs at sentencing is taken a step further by the fact that LWOR, as a punishment, characteristically undermines reformation. 

Multiple paths towards reformation and rehabilitation

Reform and rehabilitation have become central considerations at sentencing with the rise of behavioural science disciplines and with the global shift towards corrective approaches to punishments that sought to change an offender’s course to law abiding behaviour. However, coherent conceptualisation(s) of reformation and rehabilitation as a penological goal at sentencing has remained deficient, as has been observed by Forsberg and Douglas. Conceptualisations of reformation and rehabilitation have instead developed in an offshoot manner, with significant divergences. While one approach views the same as a tool serving other normative ends (crime prevention, harm reduction), a second approach views it as a normative end in itself. Even in this second approach, the characterisation of these ends significantly differ as well. Reformation and rehabilitation may be seen as a goal which either seeks to “treat” offenders, or improve their moral choices, or provide the resources to assist them in restoring their status in society (both in terms of moral relations and socioeconomic conditions). Specific conceptualisations have been criticised previously- for instance, those which treat offenders as a “diseased” person to be fixed undermines their agency. Similarly, rehabilitation based on improving offenders morally treats them as people with inherent moral deficiencies. Consequently, determining the relevance of reformation as a sentencing, and overall goal of punishment, then requires in-depth policy engagement with the substantive meanings given to reformation and rehabilitation. 

LWOR and the dismissal of reform

Scholars studying criminal law and prisons have long agreed that life sentences barring remission come with a range of issues such as cruelty, risks with assessing future dangerousness, heightened burdens on prisons and the undercutting of rehabilitation. For the purposes of the argument it sets to make, this piece shall focus only on LWOR’s engagement with rehabilitation. 

One, the very design of LWOR presupposes the absolute improbability of an offender’s reformation and rehabilitation and the consequences that this punishment bears on prisoners further undercut the same. Firstly, LWOR (termed as a modern day equivalent of banishment) denies further membership in society to the prisoner altogether, signifying a rejection of their personhood and humanity, as opposed to imposing punishment for an act i.e the offence. Such denial amounts to a form of excommunication and carries a message- it defines the person using their offence alone, thus debasing their overall identity, as opposed to furthering a reflective process over their offences. Secondly, emotions such as hope, and the eventual access to community and societal institutions play key roles in rehabilitation. However, LWOR extinguishes hope in prisoners to be able to connect with their families and societies ever again- an emotion which is necessary to facilitate reformatory change towards lawful behaviour, given the prospect of eventual reintegration with society. Thirdly, it takes away access to crucial avenues for reform which can be enabled only through community engagement, and thereby, through different forms of release.

Alternatively, LWOR sentences become redundant in a situation where prisoners have successfully undertaken reformatory and rehabilitative arcs. Findings from other jurisdictions demonstrate the meaninglessness of the continued incarceration of LWOR prisoners despite their lawful conduct and ability to reintegrate easily with society. What emerges is that within the Indian context, the imposition of LWOR sentences rests upon a wholly deficient sentencing framework for commutations in death penalty cases, and uses such a process to subject prisoners to a punishment which undercuts reformation and rehabilitation. 

The Court’s recent orders and judgments, which emphasise the collection of information to assess reformation and rehabilitation, is often accompanied by the imposition of LWOR sentences (that too, with little to no reasoning whatsoever despite the reformation information which had been available to the Court to commute the death sentence). But why should the high rates of LWOR imposition (which had a 100% rate in 2022 at the Supreme Court) be a cause of concern over the Court’s recent developments in death penalty sentencing? After all, these developments (which emphasise reform by way of seeking jail conduct and psychological evaluation reports) were meant to guide the Court’s decision making in the first step (whether or not to confirm the death sentence) and are not geared towards helping the Court make its decisions in the second step (in choosing an appropriate commuting sentence). 

However, this inconsistency within the Court between these two steps in its commutation decisions speak to larger gaps and contradictions in the Court’s conceptual understanding and use of reformation and rehabilitation in the capital sentencing process. For instance, in Manoj v. State of Madhya Pradesh, the Court, on the basis of information placed before it, found that the three prisoners were amenable to reform and hence could not be sentenced to death. In the same judgment, the Court then proceeds to impose LWOR on the prisoners without providing any reasons, despite finding their amenability to reform. This gives rise to three considerations. First, it demonstrates the uncomfortable manner in which the Sriharan framework sits with capital sentencing developments which have begun to prioritise reformation. Second, imposing LWOR even as the Court identifies reformation once again undercuts the relevance of reformation as a penological goal, thus undoing its own professed commitment towards recognising the same as a penological goal that guides the capital sentencing process as a whole. 

Third, the Court’ imposition of LWOR sentences, coupled with its lack of reasoning over why LWOR was chosen over simple life, indicates hesitancy to substantively engage with the conceptualisations of reformation and rehabilitation. Such developments, in the absence of engagement with the scope and content of reform and rehabilitation as a penological goal, takes us back to the same problems that riddled Bachan Singh. Prior to the developments in 2021 and 2022, Bachan Singh had been criticised for failing to clearly identify and articulate the penological goals of the capital sentencing process. Although subsequent developments suggest that the Court may now be filling some part of these gaps by at least identifying reformation, I argue that merely naming/identifying reformation as an important penological goal does little to change the status quo. In the face of the manifold conceptions of reformation and rehabilitation, which envision different yardsticks as to what constitutes reformation or rehabilitation, a bald assertion of the same as a penological goal is at best hollow. At worst, it provides space for serious inconsistencies in the manner in which reformation of accused persons are assessed. In other words, the Court will not only need to reassert reformation as a penological goal that the sentencing process is geared towards, but also provide meaning to the term reformation through a closer examination of its various conceptualisations. 

Gearing towards reform at sentencing?

The imposition of unreasoned LWOR sentences in judgments that make concrete findings to a prisoner’s amenability for reformation indicates the overall quality of the Court’s recent developments towards reform in capital sentencing law, and reveal serious concerns, both by way of its inconsistent treatment of prisoners’ reformation in the death penalty commutation process, and through its overall lack of conceptual clarity over the same. This contradiction is explained by the fact that Manoj’s attention to reform is entirely based on formulating bright line procedural requirements, with scant attention to what reformation and rehabilitation actually mean, and what a substantive assessment of the same should entail. The Court’s concern in the case was primarily focused on the lack of information before trial courts to gauge reform before imposing death, as opposed to the absence of doctrinal clarity over reformation (a requisite in assessing such information) and its relevance at sentencing.

The highlight of the Supreme Court’s developments in 2022 had been the Court’s referral order in its suo motu writ, convening a Constitution Bench to formulate guidelines for a meaningful and effective capital sentencing hearing. While this effectively provides the Court the chance to rectify Bachan Singh’s errors, the continuing inconsistency and deficiency in the treatment of reformation and rehabilitation signals much cause for concern, and leaves one to wonder whether the Court can really utilise this opportunity to rectify normative gaps in its capital sentencing law effectively.

Lakshmi Menon is an Associate (Sentencing) at Project 39A, National Law University, Delhi. The author would like to thank Gale Andrew for her valuable suggestions.