Unpacking the Decision in Sriharan

The majority decision in Sriharan dealt with two broad issues. First, it looked into whether courts could cast limits on the power of the executive to grant remission, which gave rise to constitutional concerns regarding separation of powers. Second, it examined the meaning of life imprisonment under section 53 of the IPC and probed whether a special category of sentence, excluding the possibility of remission after fourteen years, could be imposed instead of the death penalty. Expanding the punitive powers of the constitutional courts, Sriharan held that it was permissible to impose a fixed-term imprisonment sentence in lieu of the death penalty with no possibility of remission.Footnote ²⁴ In a dissenting opinion, Justices Sapre and Lalit highlighted constitutional concerns regarding separation of powers and the imposition of such a sentence in the absence of a statutory framework.Footnote ²⁵

At its core, the reasoning in Sriharan focused on protecting the interests of society against ‘hardened criminals’, who would ‘endanger the lives of several thousand innocent people’ if they were released.Footnote ²⁶ It ruled that in certain cases, after weighing the pros and cons of the crime on a ‘golden scale’, judges could decide not to ‘let loose’ some offenders for a certain period of time.Footnote ²⁷ Affirming the judgment in Swamy Shraddhananda, the Court ruled that such cases, deemed just below the ‘rarest of rare’ category, may render a simple life sentence insufficient and disproportionate.Footnote ²⁸ Thus, the Court created a third form of punishment, which would be an alternative to both the death penalty and simple life imprisonment. In doing so, the Court claimed that it was carving out a lenient and humane option in comparison to the death penalty. However, despite such self-characterisation of LWORP as a humane punishment, the majority judgment left unanswered many fundamental concerns about sentencing policy as well as the manner of administering such punishment.

Therefore, the majority decision in Sriharan created the possibility of incarcerating convicts whose death sentence had been commuted, for the remainder of their natural lives. In such cases, Sriharan directed the judges to arrive at this decision after weighing the pros and cons of the crime on a ‘golden scale’. However, it did not clarify what such weighing might entail, or how any court deciding the punishment can engage in such an exercise of weighing. Unsurprisingly, the Court also did not clarify how it classified some convicts as ‘hardened criminals’, especially as a vast majority of prisoners sentenced to death, ie, 87.3%, are first-time offenders.Footnote ²⁹ In effect, the Court in Sriharan gave no guidance whatsoever as to when the punishment should be given, or what factors must be considered by the Court, let alone the practical problems of implementation. We explain below the danger posed to sentencing by the absence of any principled guidance while imposing LWORP.

The ‘Golden Scale’ and the Illusion of ‘Balance’: the Sentencing Vacuum in LWORP

Merely providing sentencing guidelines would not remove the problem of arbitrariness from the sentencing process.Footnote ³⁰ As is evident from the capital sentencing framework in India, the loosely defined judicial guidelines in Bachan Singh v State of Punjab do little to contain arbitrariness when there is significant room for deviation.Footnote ³¹ The Supreme Court itself has noted the arbitrariness within the capital sentencing framework on multiple occasions.Footnote ³² Additionally, the standards laid down in Bachan Singh have been critiqued for their ambiguity.Footnote ³³ In a situation where arbitrariness is rife in capital sentencing, despite some legislative and judicial guidance, it would not be surprising if the absolute lack of any direction, as in the case of LWORP, were to exacerbate the problem. That LWORP is a judicially created punishment without any legislative grounding makes the issue graver.

To reiterate, LWORP was created by Sriharan as an alternative to the death penalty in certain cases which do not meet the threshold of ‘rarest of rare’. Within the statutory framework of the CrPC, and now the BNSS, there exists an unambiguous requirement for the sentencing court to give ‘special reasons’ while imposing the death penalty.Footnote ³⁴ This requirement of giving special reasons was first introduced in the 1973 draft of the CrPC, as earlier versions did not contain such a provision. In fact, under the 1898 CrPC, the death penalty was the default punishment for murder, and courts had to give ‘special reasons’ to impose life imprisonment instead.Footnote ³⁵ The 1955 CrPC, by contrast, did not require any special reasons at all. The change in the language of this section is significant, as it shows a shift in legislative intent towards favouring life imprisonment over the death penalty. This marks a complete reversal from the position under the 1898 Code.

Thus, while imposing the death penalty, there is a statutory requirement for sentencing courts to give ‘special reasons’. In Bachan Singh, the Court created the ‘rarest of rare’ sentencing framework to add meaning to this phrase. However, courts which imposed simple life imprisonment, ie, life imprisonment where the convict was eligible for remission after fourteen years, were not required to give any similar ‘special reasons’. This established the status of (simple) life imprisonment as the legislatively preferred punishment.

This gives LWORP a unique status because the CrPC in 1973 did not conceive of such a punishment. Post-Sriharan, constitutional courts have three sentencing options available to them, ie, simple life imprisonment, the death penalty and finally LWORP/fixed-term sentences. Unlike the first two, the third option of LWORP/fixed-term sentences has no statutory or judicial guidance. With the enactment of the BNSS in 2023, the position remains unchanged.Footnote ³⁶ Resultantly, courts are allowed to move away from simple life imprisonment, which is the legislatively preferred punishment, to LWORP and at the same time not provide any special reasons for doing so.

Gokhale has argued that, following the decision in Sriharan, LWORP could be imposed simply on the basis of the gravity of the crime and judicial conscience.Footnote ³⁷ This creates a sentencing vacuum, since all cases where the death penalty has been imposed by the trial court and the High Court would necessarily involve serious offences with some degree of brutality. If judicial conscience is not driven by any principled foundation in individualised sentencing, the outcomes would be highly arbitrary, depending on the interpretation of individual judges.

Recently, in Navas v State of Kerala, the Supreme Court, speaking through Justice KV Viswanathan, considered a case in which the trial court had imposed the death penalty, which was subsequently commuted by the High Court to fixed-term life imprisonment for thirty years.Footnote ³⁸ The Supreme Court undertook a survey of twenty-seven prior decisions in which life imprisonment without remission or parole had been imposed. The Court noted significant variation in sentencing outcomes, with terms ranging from imprisonment for the remainder of the convict’s natural life to fixed terms of twenty, twenty-one, twenty-five, thirty and thirty-five years.Footnote ³⁹ Acknowledging the ‘difficult area’ of ‘how much is too much and how much is too little’ in LWORP sentencing, the Court recognised the lack of consistency in existing jurisprudence and articulated illustrative factors to guide courts in determining the appropriate period before remission may be considered.Footnote ⁴⁰ These included: (a) the number of victims and their age and gender; (b) the nature of injuries, including whether sexual assault was involved; (c) the motive for the offence; (d) whether the offence was committed while the accused was on bail in another case; (e) the degree of premeditation; (f) the relationship between the offender and the victim; (g) any abuse of trust; (h) criminal antecedents; and (i) the likelihood of the convict posing a continuing threat to society.Footnote ⁴¹

The Court also identified mitigating considerations such as the age of the convict, prospects of reformation, absence of professional criminality, socioeconomic background, family circumstances and expressions of remorse.Footnote ⁴² Additionally, it held that the conduct of the convict while in custody and the period of incarceration already undergone may be relevant in determining the minimum term to be served before remission powers may be invoked.Footnote ⁴³ To date, this remains the only attempt to introduce some method into LWORP sentencing, nearly a decade after it was formally accepted by courts.

Navas was decided in 2024, while the dataset analysed in this article covers Supreme Court commutation decisions from 2016 to 2024. Consequently, the judgments examined do not reflect the express application of the illustrative factors articulated therein. Whether these factors will meaningfully contribute to greater consistency in LWORP sentencing remains to be seen.

Menon argues that Navas, much like earlier Supreme Court judgments, adopts a ‘misguided approach’ and goes down the ‘old (and problematic) road’ of formulating a principle for imposing remission-barred life sentences, without acute recognition of its implications.Footnote ⁴⁴ Nevertheless, the Court’s express acknowledgment of inconsistency in existing LWORP jurisprudence and its attempt to articulate guiding considerations, lends support to this article’s central claim regarding the absence of principled constraint in the imposition of LWORP sentences.

The problem intensifies in light of the fact that additional safeguards which have been read into the capital sentencing framework through judicial decisions remain inapplicable to LWORP. For instance, while imposing LWORP, appellate courts are not mandatorily required to consider the possibility of reformation,Footnote ⁴⁵ foreclose the alternative of (simple) life imprisonment,Footnote ⁴⁶ reject same-day sentencing,Footnote ⁴⁷ or even hear review petitions in open court before a three-judge bench.Footnote ⁴⁸ In the next section, we demonstrate the arbitrariness in sentencing by analysing recent decisions of the Supreme Court of India where death sentences have been commuted to LWORP.

Relevance of Mitigating and Aggravating Factors in LWORP

The Supreme Court’s approach while commuting capital sentences reveals troubling inconsistencies that challenge the principles of equality and predictability. Below, we demonstrate this by underlining how similar factors have been employed to arrive at different sentencing outcomes. It is not our argument that the mere presence of some of these mitigating factors in any case would result in similar outcomes in all cases. Undeniably, in each case, a sentencing court needs to thoroughly evaluate all mitigating and aggravating factors in a holistic manner before arriving at a punishment. Thus, it is possible that two cases may have similar mitigating factors, such as age or socio-economic circumstances, but result in different outcomes if other factors are dissimilar.

However, in our dataset, we found that the Supreme Court rarely engages in nuanced sentencing, often citing only one or two mitigating factors without sufficient explanation of how they were relevant to those cases to justify the commutation of death sentences. Across different cases in our dataset, we also found that the mere citing of one or two mitigating factors, while sufficient to commute, was in fact not applied consistently to arrive at similar outcomes. Similarly, aggravating factors such as the young age of the victim and position of trust held by the accused are used to underscore the brutality of the offence, thereby rendering simple life imprisonment insufficient. In other cases, however, the presence of mitigating factors was liberally used to impose simple life imprisonment, as well as fixed-term imprisonment of 20, 25 and 30 years. The use of such mitigating factors, however, does not create a coherent jurisprudence in commutation cases.

Mitigating Circumstances

Age and Lack of Criminal Antecedents of the Offender. In our dataset of fifty-three cases, the Supreme Court has relied on the age of the offender and their lack of criminal antecedents to commute death sentences in twenty-seven cases each, with significant overlap between the two categories. While the link between the two sentencing factors is not expressly spelt out by the Court in any case, they have been used together in all cases, indicating that a young person with no criminal antecedents should not be sentenced to death. However, why they should be punished with LWORP, and not released on remission, remains unexplained.

In cases involving young offenders, the Court has typically considered ages between twenty and thirty years at the time of the offence. In cases involving older offenders, it has taken into account ages close to fifty years or above. When referring to the absence of criminal antecedents, the Court usually states this as a fact without explaining the source of such information. Below, we show that the weight assigned to these factors varies significantly across cases, without clear justification.

For instance, in Digambar v State of Maharashtra, resulting in simple life imprisonment, the Court highlighted that the accused was a young person who was twenty-five years old at the time of commission of the offence, which was a significant mitigating factor, along with their good conduct in prison and lack of criminal antecedents.Footnote ⁴⁹ Similarly, in Jitendra Kushwaha v State of Madhya Pradesh and Rabbu @Sarvesh v State of Madhya Pradesh, the Court relied on the fact that the young appellants were only twenty-four years old and twenty-two years old respectively at the time of the offence to commute the sentences to fixed-term sentences of twenty years of LWORP.Footnote ⁵⁰ In both these cases, the Court also took into account the lack of criminal antecedents of the accused and the possibility of reformation. However, in neither case did the Court explain why simple life imprisonment was considered inadequate. As we have discussed above, simple life imprisonment remains the legislatively preferred punishment, and a sentencing court imposing it is not required to give any special reasons.Footnote ⁵¹ However, the absence of any sentencing standards for LWORP has enabled the Supreme Court to impose LWORP without justifying why simple life imprisonment would be inadequate. Thus, the requirement in capital sentencing to show how the alternative punishment of life imprisonment is unquestionably foreclosed is circumvented in the imposition of LWORP.

Likewise, in Sundar @Sundarrajan v State, involving the murder of a minor, the Court noted that the death penalty had been imposed previously only on the basis of the brutality of the crime.Footnote ⁵² Noting that the accused was only twenty-three years old at the time of the offence, the Court considered prison records showing good conduct, educational and vocational training, and ill health, despite a prior attempt to escape. However, emphasising the brutality of the crime and the murder of a seven-year-old child, the Court held that simple life imprisonment was inadequate and imposed a fixed-term sentence of twenty years. A close reading of the judgment suggests that, like the courts below, the Supreme Court ultimately based its sentencing decision on the brutality of the offence. The sentencing order in Sundar @Sundarrajan does not explain how the possibility of reformation, particularly in light of the accused’s young age, was considered in imposing a twenty-year LWORP sentence.

Even more striking are the inconsistencies within fixed-term sentences, ie, cases resulting in twenty years’, twenty-five years’ or thirty years’ imprisonment. In Bhagwani v State of Madhya Pradesh, the Court acknowledged the young age of the offender, who was only twenty-two years old, and also observed that ‘there is no evidence produced by the prosecution that the appellant has the propensity of committing further crimes’.Footnote ⁵³ However, citing the brutality of the crime, the Court imposed a fixed-term LWORP sentence of thirty years without explaining why a shorter sentence (such as twenty or twenty-five years) would be inadequate. Similarly, in Veerendra v State of Madhya Pradesh, the Court noted that the accused was only twenty-five years old at the time of committing the offence and lacked any criminal antecedents.Footnote ⁵⁴ However, given the brutality of the crime of rape and murder of an eight-year-old child, the Court imposed a sentence of thirty years’ imprisonment. There was, once again, no justification whatsoever as to how the exact punishment of LWORP of thirty years would be the most appropriate sentence.

Moving to old age, in Madan v State of Uttar Pradesh, the Court acknowledged that the accused was of an advanced age, ie, sixty-four years old, and had been imprisoned for eighteen years.Footnote ⁵⁵ The Court also noted that there was a history of previous convictions, but observed that this could not be the sole reason for imposing the death penalty. Taking into account his old age, health and good conduct in prison, as reflected in prison and medical reports, the Court commuted his sentence to twenty years of LWORP.

Likewise, in Sambhubhai Padhiyar v State of Gujarat, the Court acknowledged the young age of the offender, who was twenty-four years old, along with a host of other mitigating factors set out in a report by a mitigation expert.Footnote ⁵⁶ However, noting the brutality of the offence, the Court held that a sentence without remission would alone be ‘proportionate to the crime’ and necessary to ensure ‘public confidence in the efficacy of the legal system’, and accordingly imposed a sentence of twenty-five years’ imprisonment without remission.Footnote ⁵⁷ The Court does not explain how it arrived at a LWORP sentence of twenty-five years, or why a shorter sentence of twenty years would be inadequate, or a longer sentence of thirty years unnecessary, to maintain the ‘public confidence’ it invokes.

The cases above illustrate how despite the existence of similar mitigating factors, there is a dramatic disparity in outcomes. Undoubtedly, the countervailing aggravating factors also play a role in determining the sentence. However, in capital cases, where all crimes involve a significant element of brutality, it is concerning that the Court treats factors relating to the crime (ie, aggravating factors) as sufficient, though not necessary, to impose LWORP. The problem gains severity in light of the fact that there is virtually no sentencing guidance available to courts in commutation cases. Thus, the Court has been imposing extremely severe and disparate sentences, sometimes varying by over a decade, with little explanation as to its choice of punishment.

Socio-Economic Circumstances and Ties with Family. The accused’s disadvantaged background is cited in fourteen cases in our dataset, across all sentencing categories, but its impact on the ultimate punishment appears inconsistent. In MA Antony v State of Kerala, the Court elaborated on the severe financial constraints of the accused, noting that while he was desirous of going to the Gulf, he was unable to pay for his visa and was also unable to pay the reservation charges for a train ticket from Ernakulam to Mumbai.Footnote ⁵⁸ In the decision to commute the accused’s sentence to simple life imprisonment, the socio-economic circumstances played a major role as the Court felt that the defendant was driven by poverty to a life of criminality.Footnote ⁵⁹ Similarly, in Shyam Singh @Bhima v State of Madhya Pradesh, the Court observed that the accused came from a poor socio-economic background and was also addicted to drugs, and therefore in need of money.Footnote ⁶⁰ This was a relevant economic factor, along with the young age and lack of criminal antecedents, that influenced the decision of the Court to commute the death sentence to simple life imprisonment.

A comparison of these cases with others in our dataset shows that similar socio-economic and personal circumstances often lead to very different sentencing outcomes. For instance, in Manoj Suryavanshi v State of Chhattisgarh, the Court acknowledged that the accused belonged to a poor family and was the only son of his old parents.Footnote ⁶¹ Despite acknowledging that the accused was under extreme mental and emotional disturbance at the time of the offence due to his wife’s elopement and his children’s suffering, the Court eventually imposed an LWORP sentence of twenty-five years.

Similarly, in Eknath Kisan Kumbharkar v State of Maharashtra, the Court recorded that the appellant came from a ‘poor nomadic community’ and was compelled to begin working at the age of five to support his family. It noted that he had an alcoholic father and survived by doing ‘odd jobs such as cattle rearing and selling milk’. The Court further observed that the appellant made repeated efforts to lift his family out of poverty, including borrowing money to purchase autos to earn a livelihood, but was ultimately unable to sustain these efforts due to ‘poverty and debt’.Footnote ⁶² Despite noting these facts and several other mitigating factors around the mental and physical health of the accused, the Court held that while it could not be said that the case belonged to the ‘rarest of rare’ category, it needed to follow a ‘middle path’ approach and imposed a twenty-year LWORP sentence.Footnote ⁶³ A close reading of the judgment suggests that the extent of socio-economic disadvantage does not meaningfully influence the length of the prison sentence. The Court also did not explain why a ‘middle-path approach’ was warranted, besides a cursory reference to the brutality of the crime.

In Mannan @Abdul Manan, a case discussed at the outset of this article, the Court noted the sentencing arguments of the defence lawyers that the accused had lived his entire life in poverty without access to formal education. He began working at the age of fifteen after his father was incapacitated by a stroke, married at twenty-two, and struggled to support his wife and five dependent children while living in extreme poverty.Footnote ⁶⁴ Despite noting these circumstances, the Court imposed imprisonment for the remainder of his natural life, referring only briefly to the crime as ‘barbaric’. The judgment does not explain why a shorter sentence would have been inadequate, nor does it clarify how this case was distinguishable from others involving similar mitigating factors.

Conduct in Prison, Mental Health and the Potential for Reformation. In its landmark decision on capital sentencing, the Supreme Court in Manoj v State of Madhya Pradesh held that death sentences imposed without thorough consideration of mitigating factors constitute a misapplication of the principles established in Bachan Singh.Footnote ⁶⁵ The Court established a positive obligation on trial courts deciding between life and death to actively gather comprehensive information about the accused’s personal circumstances from both the prosecution and the defence. Characterising such circumstances in broad terms, the Court held that sentencing courts should look into factors such as the jail conduct report of the accused as well as their psychological and psychiatric evaluation reports before imposing the death penalty. Prior to this decision, in April 2019, the Supreme Court in Accused X v State of Maharashtra, while commuting a death sentence to LWORP till the end of the accused's natural life, had underscored the importance of severe post-conviction mental illness and held that it should be considered as a mitigating factor in capital cases.Footnote ⁶⁶

Within the realm of death penalty sentencing, there is considerable confusion around the use of such factors, especially as the Supreme Court has pronounced subsequent judgments that are contrary to Manoj.Footnote ⁶⁷ In commutation cases that form part of our dataset, we found that factors such as good conduct of the accused in prison or their adverse mental and physical health have played a role in the commutation of the sentences.

For instance, in Dnyaneshwar Borkar v State of Maharashtra, the Court relied on the good conduct of the accused in prison, noting that he had completed his graduation from prison, wrote poems expressing remorse, and tried to become a civilised man.Footnote ⁶⁸ Based on these factors, the Court ruled that the accused could be reformed and rehabilitated, and thus commuted his death sentence to simple life imprisonment. Similarly, in Javed Khan @Tingra v State of Maharashtra, the Court took into account the jail conduct report and noted that the accused completed educational programs on Gandhian thoughts, completed a Bachelor Preparatory Program by Indira Gandhi National Open University (IGNOU), and, on the basis of that certificate, even enrolled in a graduation program by IGNOU.Footnote ⁶⁹ These factors led the Court to conclude that the appellant was on the path of reformation, and it was possible that he was ‘already a reformed person’.Footnote ⁷⁰ Thus, the Court commuted his sentence to simple life imprisonment. Likewise, in Santosh Maruti Mane v State of Maharashtra, the Court reached a similar conclusion while noting that although the accused was unable to prove insanity, he was under extreme mental disturbance at the time of the offence and his conduct in jail was satisfactory.Footnote ⁷¹ Thus, the Court felt that there was sufficient material to conclude that the accused was already a reformed person and therefore imposed simple life imprisonment.

The sentencing outcomes in Dnyaneshwar Borkar, Javed Khan, and Santosh Mane stand in contrast with Rabbu @Sarvesh v State of Madhya Pradesh, where the Court similarly took into consideration the probation report and found that the conduct of the accused in prison was ‘satisfactory’.Footnote ⁷² The Court observed that, despite not being allotted any work by prison authorities, the accused engaged himself in activities such as planting trees and cleaning the temple and its surrounding areas.Footnote ⁷³ Taking these factors into consideration, the Court noted that the accused was not a hardened criminal and the possibility of reformation could not be ruled out. While these circumstances led the Court to commute the death sentence, it eventually imposed a fixed-term imprisonment of twenty years. This is an especially troubling outcome given that the Court itself acknowledges the possibility of the convict’s reformation, yet goes on to impose an excessively lengthy sentence, which renders ineffective any meaningful possibility of reformation. Similarly, in Eknath Kisan Kumbharkar v State of Maharashtra, the Court took into consideration the good conduct of the accused in prison, showing how in the early years of incarceration he participated in multiple prison activities, such as learning English and making bags.Footnote ⁷⁴ The Court also considered detailed psychiatric and mitigation evaluation reports which showed that he suffered from permanent cognitive impairment, persistent speech deficits, and serious heart disease requiring ongoing treatment.Footnote ⁷⁵ Despite engaging with these materials, the Court imposed a twenty-year fixed-term LWORP.

The arbitrariness instilled in the sentencing process also becomes glaring when comparing Rabbu and Eknath with Viran Gyanlal Rajput v State of Maharashtra, where the Court imposed a 20-year LWORP simply by stating that ‘the post-incarceration conduct of the accused in no way shows the impossibility of reform’.Footnote ⁷⁶ In Viran, the Court made no mention of what material it examined to understand the conduct of the accused in jail. Yet, in Rabbu and Eknath, judicial engagement with extremely detailed documents about the lives of the accused resulted in exactly the same punishment as Viran. Once again, in Sambhubhai Padhiyar v State of Gujarat, the Court explicitly considered mental illnesses of the accused along with his good conduct in prison.Footnote ⁷⁷ Relying on multiple reports, the Court noted that the appellant was diagnosed with moderate-intensity psychotic features and intellectual disability.Footnote ⁷⁸ While commuting the death sentence, the Court imposed a twenty-five-year LWORP.

While the above decisions reveal an inconsistent impact of probation and psychiatric reports on the actual sentence, in Sudam @Rahul Kaniram Jadhav v State of Maharashtra, the Court noted the adverse conduct of the accused while imposing a sentence till the end of natural life.Footnote ⁷⁹ The Court noted that the accused’s conduct in jail was ‘unsatisfactory’, marked by aggression, repeated involvement in fights and abuse of both prisoners and prison staff. It also recorded that two FIRs had been registered against him for threatening the Superintendent of the Nagpur Central Prison.Footnote ⁸⁰ Noting these factors and the brutality of the crime, the Court held that the accused was ‘a menace to the society’, justifying the full life sentence.Footnote ⁸¹ While there are underlying tones indicating the absence of the possibility of reform, the Court does not state this explicitly, rendering the reasoning vague. Remarkably, there were no observations or reports about the mental health of the accused. Such an outcome reveals a fundamental asymmetry in decision-making, ie, while negative conduct in prison justifies excessively harsh sentences, supremely good conduct does not even automatically lead to commutation to simple life imprisonment that makes a convict eligible for remission after fourteen years of incarceration.

The Supreme Court’s decisions to commute capital sentences through the imposition of LWORP appear incompatible with the competing goal of reformation that the Court frequently underscores while deciding between life imprisonment and the death penalty. By acknowledging the possibility of reformation on the one hand and imposing excessively long sentences that preclude any such possibility on the other hand, the Court inadvertently exposes how retributive impulses often override rehabilitative goals in its decision-making process. This is also evident from the language used by the Court, such as mentioning how simple life imprisonment would be inadequate and its lack of consideration of the possibility of reformation within prison. Below, we explicate how our argument holds true for the Court’s treatment of aggravating factors as well.

Aggravating Factors

Age and Vulnerability of the Victim, Position of Trust of the Offender. A common theme that emerges from our dataset is that the Supreme Court is more likely to impose LWORP in cases where the victim is a minor, particularly when the accused occupies a position of trust. The victim’s vulnerability, arising from both age and relationship, is treated as intensifying the betrayal of trust, which the Court relies on to justify the imposition of LWORP.

For instance, in Mohd Firoz v State of Madhya Pradesh, which involved the rape and murder of a four-year-old girl, the Court relied heavily on emotive descriptions of the victim’s age and vulnerability, describing her as a ‘tiny bud’ whose life was prematurely extinguished by the appellant.Footnote ⁸² The victim’s youth thus directly amplified the perceived brutality of the crime, and the accused was sentenced to twenty years of LWORP. Similarly, in Sundar @Sundarrajan v State, involving the murder of a seven-year-old child, the Court commuted the death sentence to twenty years of LWORP, emphasising the gruesome nature of the offence and observing that ordinary life imprisonment, which ‘normally works out to a term of fourteen years,’ would be disproportionate in the circumstances.Footnote ⁸³ Continuing this trend, in Raju Jagdish Paswan v State of Maharashtra, which involved the rape and murder of a minor in a sugarcane field, the Court held that the victim’s age of nine years enhanced her vulnerability, and therefore reasoned that releasing the accused after fourteen years of imprisonment would not be ‘in the interests of the society’.Footnote ⁸⁴ Citing these as aggravating factors, the Court imposed a punishment of thirty years of LWORP.Footnote ⁸⁵ While a majority of cases which consider the vulnerability of the victim due to age involve sexual offences coupled with murder, in Manoj Suryavanshi v State of Chhattisgarh, the Court imposed a twenty-five-year LWORP for the murder (without any sexual offence) of three children aged four, six and eight years and highlighted the helplessness of the children.

Cases in which the accused occupied a position of trust vis-à-vis the victim were treated as especially grave by the Court. For instance, in Swapan Kumar Jha v State of Jharkhand, the Court held that the accused deserved a harsher punishment than his co-accused because he had betrayed the trust of his own cousin.Footnote ⁸⁶ The Court linked this betrayal to both the victim’s vulnerability due to age and the accused’s position of trust and imposed a sentence of twenty-five years of LWORP, observing that ordinary life imprisonment would be inadequate given the possibility of remission after fourteen years. Similarly, in Veerendra v State of Madhya Pradesh, the Court treated the brutal murder of the accused’s cousin’s eight-year-old daughter as an aggravating circumstance.Footnote ⁸⁷ While acknowledging the presence of mitigating factors, it nevertheless commuted the sentence to thirty years of LWORP. In Shatrughan Baban Meshram v State of Maharashtra, involving the rape and murder of the accused’s seven-year-old niece, the Court again emphasised the breach of familial trust and imposed a sentence of twenty-five years of LWORP.Footnote ⁸⁸

Eroding Principled Individualised Sentencing

As is evident from the above cases, certain mitigating and aggravating factors play a major role in the Court’s decisions to impose lengthy prison terms, even where it recognises that the case does not warrant the death penalty. However, such commutations sit uncomfortably with the individualised capital sentencing framework laid down in Bachan Singh and subsequent judgments, wherein it has been unequivocally recognised that sentencing decisions must not be influenced by the circumstances of the crime alone.Footnote ⁸⁹ In our dataset, we observe that while mitigation evidence often results in the commutation of death sentences, there is a significant lack of transparency in the sentencing determination that follows such commutation. In other words, there is no clarity as to how the Court arrives at the precise term of imprisonment to be imposed in each case.

As we have shown above, courts routinely impose sentences of twenty years, twenty-five years or thirty years of LWORP, while simultaneously acknowledging the possibility of reformation of the convicts. There is no explanation as to why simple life imprisonment would be inadequate in these cases, other than a brief reference to the brutality of the offence, which stands exacerbated by the young age and vulnerability of the victim. There is also no explanation as to why the Court imposes a twenty-year LWORP sentence, as opposed to twenty-five years or thirty years or even a full-life term. There is no discussion of how the ideal of reformation is to be achieved as the convict undergoes prolonged periods of incarceration. The judgments reveal little about the sentencing process or rationale, beyond the fact that the Court did not consider the case to be ‘rarest of rare’ and therefore fit for the imposition of the death penalty.

In light of the literature on capital sentencing, this provides further evidence of the arbitrariness of the sentencing process, as different judges interpret the ‘rarest of rare’ framework differently. The problem intensifies in LWORP cases, as decision-making in these cases appears to be driven primarily by the circumstances of the crime. However, unlike in death penalty sentencing, courts imposing LWORP are not required to adhere to any standards governing the weight to be assigned to the brutality of the crime or other aggravating factors. The sentencing stage following commutation is not constrained by any judicial standards or legislative guidance. Consequently, appellate courts in the post-Sriharan phase enjoy free rein to rely on any sentencing factor and impose sentences of widely varying lengths, so long as the death penalty is not imposed. The breadth of this unguided judicial discretion severely undermines the normative principles of sentencing parity and proportionality that undergird the criminal justice system.

Other Factors Influencing LWORP

Our analysis of the cases in our dataset reveals two distinct factors that have influenced outcomes in the commutation of death sentences to LWORP, but do not neatly fit within the conventional framework of mitigating and aggravating circumstances. These are first, the centrality accorded to sexual violence as an independent justification for harsher punishment, and second, the judicially created doctrine of ‘residual doubt’. In the sections that follow, we explain how these factors operate in commutation decisions and why they are significant for understanding the Supreme Court of India’s sentencing practices in LWORP cases.

Sexual Offences. Over the past decade in India, particularly following the gangrape and murder of a young woman in Delhi in December 2012, sexual violence, particularly brutal stranger rapes, has become a significant political issue.Footnote ⁹⁰ The shrill public demand for the death penalty in the Delhi gangrape case was followed by widespread public support for the extrajudicial killing of the accused in another gangrape case in Hyderabad.Footnote ⁹¹ On the legislative front, the overhaul of the criminal legal system through the enactment of the BNS, the BNSS and the Bharatiya Sakshya Adhiniyam 2023 (BSA), was ostensibly justified by the need to give ‘precedence’ to crimes against women.Footnote ⁹² Even prior to that, the Parliament of India introduced long, mandatory-minimum sentences and the death penalty for various graded sexual offences through the Criminal Law (Amendment) Act 2013, Criminal Law (Amendment) Act 2018, and the Protection of Children from Sexual Offences (Amendment) Act 2019.Footnote ⁹³ In addition, state legislatures of Telangana, Maharashtra and West Bengal have passed special laws following brutal gangrapes, further expanding the scope of the death penalty.Footnote ⁹⁴

Along with legislative developments, the Supreme Court’s decisions in sexual violence cases, particularly those involving capital offences, have attracted considerable academic attention. The proportion of sexual violence cases among death sentences imposed by the Supreme Court has increased significantly since 2016.Footnote ⁹⁵ In 2016, sexual offences comprised only 17.64% of the total death sentences in India.Footnote ⁹⁶ However, this increased to 32.27% in 2017Footnote ⁹⁷, 40.49% in 2018Footnote ⁹⁸, 51.92% in 2019Footnote ⁹⁹ and 62.8% in 2020.Footnote ¹⁰⁰ While there has been some decline in the proportion of sexual violence cases among the death sentences imposed since 2020, it remains a significant category of crime for which the Apex Court confirms death sentences. To illustrate, sexual offences comprised 33.33% of the death penalty cases in 2021, 31.5% in 2022, 51.4% in 2023 and 26.6% in 2024.Footnote ¹⁰¹ Such statistics have led scholars of crime and punishment to argue that sexual violence lies at the heart of the debate on capital punishment in India.Footnote ¹⁰²

In this section of our article, we argue that the carceral inclination in the context of sexual violence also extends to LWORP sentencing. A close examination of the commutation of death sentences in cases of sexual violence reveals a judicial preference for long sentences, with the Court citing the nature of the crime. We found from our reading that the ‘sexual’ element of the crime was treated by the Court as a factor that rendered simple life imprisonment an insufficient punishment, justifying the imposition of LWORP. We demonstrate this below through quantitative analysis and illustrative examples from our dataset. Of the fifty-three commutation cases examined, thirty involved sexual offences. Among these thirty cases, six resulted in simple life imprisonment, while the remaining twenty-four culminated in some form of LWORP.

Similarly, of the nine cases in which the Court imposed LWORP for the remainder of the convict’s natural life, six involved sexual offences.

The remaining three cases involved multiple murders and all of them had minor victims.Footnote ¹⁰³ Thus, all cases of single-victim crimes which resulted in full-life LWORP involved sexual violence. Of the thirty fixed-term LWORP cases in our dataset, nineteen involved sexual offences, and resulted in sentences ranging from twenty years to thirty years of LWORP. Of these, eight cases resulted in thirty years of LWORP, five cases resulted in twenty-five years of LWORP, and six cases resulted in twenty years’ LWORP. The table below graphically represents this:

Similar to full life sentences, we found that the Court had imposed thirty years of LWORP for single-victim crimes only in sexual offences; the two other cases in which the Court imposed thirty years LWORP involved murders of more than one person as part of the same crime.Footnote ¹⁰⁴ Among the fourteen cases of simple life imprisonment in our dataset, only three involved sexual offences.

These data indicate how sexual violence cases constitute a substantial proportion of LWORP sentences within the broader set of death-sentence commutations adjudicated by the Supreme Court of India. Akin to our discussion in the previous sections of this article, in none of these cases did the Supreme Court justify its choice of a specific period of punishment. However, what does emerge from these data is a pattern indicating that the Supreme Court treats sexual violence as particularly egregious, warranting punishment beyond what similar non-sexual violent crimes typically receive.

The reasoning of the Supreme Court while imposing LWORP in cases of sexual violence makes apparent the nature of the crime itself as a justification for imposing the punishment. For instance, consider the case of Viran Gyanlal Rajput v State of Maharashtra which involved the kidnapping, rape and murder of a thirteen-year-old girl.Footnote ¹⁰⁵ In commuting the death sentence to fixed-term LWORP of twenty years, the Court expressly noted that simple life imprisonment would be disproportionate, as ‘it would not meet the need to respond to crimes against women and children in the most stringent manner possible’.Footnote ¹⁰⁶ Similarly, in Tattu Lodhi v State of Madhya Pradesh, the ‘lust’ of the accused while committing the offence was a relevant factor for the Court to impose a fixed-term imprisonment of twenty-five years.Footnote ¹⁰⁷ The Court observed that, as a ‘helpless child fell victim of the crime of lust’, there ‘may be probabilities of such crimes being repeated in case the appellant is allowed to come out of the prison’ after fourteen years’ imprisonment. Thus, the Court imposed LWORP of twenty-five years. This was also seen in Mohd Firoz v State of Madhya Pradesh, where the Court, while commuting the death sentence to a full-life LWORP, highlighted the ‘barbaric acts of rape and sexual assault on the child victim’, which precluded the sufficiency of a simple life sentence.Footnote ¹⁰⁸ However, in these cases, it is unclear as to why there was a probability of similar crimes in future, given that there is no mention of the antecedents of the accused. If the commission of one brutal crime increases the probability of the same accused committing similar crimes in future, then questions around reformation or rehabilitation of offenders would not arise in any capital case. However, the Supreme Court has time and again reiterated the importance of considering reformation and rehabilitation in deciding between life imprisonment and the death penalty.Footnote ¹⁰⁹

The carceral turn in sexual violence legislation has also directly impacted judicial decisions in the commutation of death sentences. Statutory provisions, such as section 376A and 376DA of the IPC, which allow for imprisonment till the end of natural life, have been invoked by courts to impose LWORP, even in cases which are not governed by these provisions.Footnote ¹¹⁰ This was visible in the case of Kamlesh @Ghanti v State of Madhya Pradesh, involving the rape and murder of a minor, where the Court, while imposing full-life LWORP, observed:

This gives a dangerous colour to the Supreme Court’s decision-making process, especially since the crime in Kamlesh @Ghanti was committed before the enactment of the Criminal Law (Amendment) Act 2013. The reliance on inapplicable statutory provisions to impose LWORP makes it especially egregious as it seeks to retrospectively apply the legislative choice of punishment to justify a judicially crafted sentence. In the recent past, similar reasoning has also been used to impose the death penalty in sexual offences.Footnote ¹¹² The lack of any principled reasoning in imposing the punishment points towards a complete abdication of sentencing responsibility, particularly in brutal sexual offences. This indicates a situation wherein the constitutional safeguards afforded to the accused are systematically diminished in sexual offence cases, eroding their right to a fair trial which also extends to the sentencing stage.

The constitutionality of section 376DA and section 376DB of the IPC (corresponding to section 70(2) of the BNS) was challenged on grounds that the mandatory minimum sentence of life imprisonment for the remainder of the convict's natural life precluded judicial discretion, left no scope for consideration of mitigating circumstances, and constituted a cruel and degrading form of punishment.Footnote ¹¹³ However, the Supreme Court recently dismissed the petition, adding to the discourse of severe punishments for sexual offences.Footnote ¹¹⁴ The Supreme Court’s deference to punitive public and legislative discourse in sexual offences subordinates principled sentencing to populist demands for retribution.

Theory of Residual Doubt. In a bid to move away from the death penalty, Indian courts have used the theory of residual doubt as a mitigating factor in sentencing, wherein a sentencing judge’s decisiveness may shift between ‘reasonable doubt’ and ‘absolute certainty’, creating a lingering doubt in favour of the accused.Footnote ¹¹⁵ In practice, this results in a ‘dual standard’ of doubt applicable at the trial stage and at the sentencing stage, wherein the evidence adduced in a trial is sufficient to arrive at a guilty determination using the beyond reasonable doubt standard, while at the same time leaving a ‘lingering doubt’ that makes it incompatible with a sentence of death.Footnote ¹¹⁶

The theory of residual doubt can be traced back to the American case of Lockhart v McCree wherein the Supreme Court of the United States was dealing with the constitutionality of excluding potential jurors in capital cases who expressed strong opposition to the death penalty.Footnote ¹¹⁷ In deciding the case, the Court noted that a plea of ‘residual doubt’ could be beneficial to an accused and may caution jurors who are uncertain about the accused’s guilt to decide against the death sentence. Since then, the doctrine has gained traction in the United States.Footnote ¹¹⁸

Its first enunciation in the Indian context was in the case of Ashok Debaramma v State of Tripura wherein the trial court sentenced the accused persons to death in a case where a group of ‘armed extremists’ set fire to twenty houses belonging to a minority group, leading to the death of fifteen people.Footnote ¹¹⁹ In commuting the death penalty to a fixed-term life imprisonment of twenty years, the Court, inter alia, considered residual doubt as a mitigating factor and held:

Similarly, in Ravishankar @Baba Vishwakarma v State of Madhya Pradesh, the Court, while commuting the death sentence of the accused to LWORP for the rest of natural life, held:

Likewise, in Arvind v State of Maharashtra, the Court commuted the death sentence of the accused to LWORP of twenty-five years, stating that the crime did not meet the threshold of ‘rarest of rare’.Footnote ¹²² Although the judgment does not clarify what would be required to meet the threshold, it does mention that the counsel for the defence raised the point of residual doubt, as used in Ravishankar @ Baba Vishwakarma.

One of the clearest invocations of the theory of residual doubt can be found in Sudam @Rahul Kaniram Jadhav v State of Maharashtra, wherein the Court, while citing Ashok Debbarma, expressly clarified that there was no doubt as to the guilt of the accused.Footnote ¹²³ However, the Court went on to commute the death sentence to LWORP for the remainder of the accused's natural life on the ground that ‘the nature of circumstantial evidence in this case amounts to a mitigating circumstance significant enough to tilt the balance of aggravating and mitigating circumstances in the [p]etitioner’s favour, keeping in mind the doctrine of prudence’. Even while rejecting the theory of residual doubt, the nature of the evidence, ie, ‘last-seen’ evidence and an extra-judicial confession, led to the commutation of a sentence of death to LWORP.

Some scholars have highlighted the importance of the doctrine of residual doubt in ensuring a minimum possibility of error in capital cases, given that human life is at stake.Footnote ¹²⁴ Nevertheless, the jurisprudential basis of the principle remains unclear, opening it up for critique.Footnote ¹²⁵ The decision to uphold the conviction of the accused based on a specific set of evidence, but to refuse to confirm their death sentence citing the weakness in that very evidence exposes a troubling paradox of judicial reasoning. This is especially important since the Supreme Court in these cases not only decided on the question of sentence but also examined the evidence on record to determine the guilt of the accused.

This inconsistency is admitted by the Supreme Court itself in some of its recent decisions. In Shatrughna Baban Meshram, the Court discussed the fallibility of the theory of residual doubt even in the jury-centric American context where it evolved, and explained why such a principle should not normatively apply in capital sentencing in India.Footnote ¹²⁶ The theory of residual doubt has been most recently discussed and rejected in Manoj Pratap Singh v State of Rajasthan, wherein a three-judge Bench of the Supreme Court noted that given the ‘requirement of proof beyond reasonable doubt, theoretically there is no scope for any “residual doubt” operating even in the cases of circumstantial evidence… if at all any such doubt is reasonably existing, the very basis of conviction would be in question’.Footnote ¹²⁷ The Court thus underlined the importance of examining the evidence at the stage of guilt determination itself, noting that there would be no scope for any residual doubt at the stage of sentencing.

It is undeniable that deciding capital cases should leave no room for error, given the irreversible nature of the punishment. However, the same argument is also applicable to LWORP, which involves deprivation of personal liberty for a nearly indefinite period of time. In fact, applying the theory of residual doubt to commute the capital sentence to LWORP for the remainder of the accused’s natural life, as in the case of Ravishankar @Baba Vishwakarma, leaves no scope for the accused to contemplate a life outside of prison. Disconcertingly, such reliance on residual doubt to completely restrict the possibility of remission takes place despite heavy criticism of the theory.

The Intimate Link Between Death Penalty and LWORP

Our dataset reveals that between 2016 and 2024, the Supreme Court has increasingly commuted death sentences, even though the number of death sentences imposed by trial courts across the country has remained within the same range of 400-554 cases.Footnote ¹²⁸ This trend discloses the Supreme Court’s veering away from confirmation of death sentences in the face of glaring procedural irregularities in capital cases. This shift is also evident in the recent decisions of the Supreme Court wherein prisons have been directed to grant access to social workers for mitigation investigations, trial courts have been directed to look for evidence of reformation, and a larger bench has been constituted to examine procedural irregularities in capital sentencing.Footnote ¹²⁹ A deeper look into other reasons driving the shift away from the death penalty by the Apex Court reveals the increasing relevance of LWORP in the sentencing process of the Apex Court.

As we have shown in the previous section, the majority of commutations of death sentences have in fact resulted in the imposition of long, fixed-term sentences or imprisonment for the whole of the convict's natural life. This rise in the number of LWORP and fixed-term sentences thus must be seen in a context where the Supreme Court is increasingly pushing back against the imposition of the death penalty within a questionable sentencing framework. In fact, in Channulal v State of Chhattisgarh, Joseph J in his dissenting opinion questioned the normative value of the death penalty, highlighting how Bachan Singh has failed to prevent death sentences from being ‘arbitrarily and freakishly imposed’.Footnote ¹³⁰ Under such circumstances, the availability of LWORP serves as a middle ground which allows the courts to justify the commutation of the death penalty while simultaneously imposing a severe sentence.

Such a pattern of declining death sentences accompanied by rising LWORP is not unique to India. James Liebman has noted that the drop in death sentences, from 320 in 1996 to 125 in 2005, would not have happened without LWORP.Footnote ¹³¹ Studies highlight how, in the United States, support for the death penalty has increasingly declined, given how LWORP is posed as a palatable ‘alternative’. The rise of LWORP as a method of punishment is inextricably linked to the ‘zero-sum relationship’ that exists between LWORP and the death penalty, ie, the availability of LWORP as an alternative punishment has a direct relationship with the reduction in death sentences.Footnote ¹³²

Similarly, in India, the decline in the confirmation of death sentences can be directly linked, at least in part, to the increasing availability of LWORP and fixed-term sentences. This shift was explicitly facilitated by the Supreme Court’s decision in Sriharan, which sought to institutionalise a so-called ‘middle ground’ for cases where the ‘rarest of rare’ threshold was not met, yet simple life imprisonment was perceived as inadequate.

However, this recalibration of capital sentencing has produced a serious distortion. Unlike the death penalty, the imposition of LWORP does not attract the same degree of judicial scrutiny, procedural rigour or normative justification. As a result, courts have increasingly imposed exceptionally long terms of imprisonment without meaningful engagement with principles of individualised sentencing, allowing LWORP to function as a severe and largely unregulated substitute for the death penalty.

Abdication of Reformation and Rehabilitation as Legitimate Goals of Punishment

The relevance of reformation and rehabilitation within capital sentencing was asserted in Bachan Singh, which required sentencing courts not only to weigh aggravating and mitigating circumstances but also to assess whether there existed any possibility of the convict’s reformation. More recently, in Manoj v State of Madhya Pradesh, the Supreme Court reiterated the centrality of reformation in capital cases, observing that ‘the goal of reformation is ideal’, and what society must ‘strive towards’.Footnote ¹³³ International instruments like the ICCPR and the UN Standard Minimum Rules for the Treatment of Prisoners (also known as the Mandela Rules) highlight the importance and centrality of reformation and rehabilitation of convicts.Footnote ¹³⁴

Given the significance accorded to reformation and rehabilitation within the Supreme Court’s capital sentencing jurisprudence, the normative position of LWORP remains deeply unclear. If reformation is important within Indian sentencing policy, LWORP serves no meaningful penological purpose, as it effectively excludes the convict from any realistic possibility of release. Specifically, a sentence of LWORP for the remainder of natural life rests on the assumption that the individual convict is immutable and must therefore be permanently condemned.Footnote ¹³⁵

Thus, the Supreme Court’s approach to LWORP sentencing sits uneasily with its professed commitment to reformation and rehabilitation as legitimate goals of punishment. Decisions on excluding remission remain tethered almost entirely to the circumstances of the offence and the offender’s culpability at the time of the crime, rather than to considerations that are central to the logic of remission: namely, post-conviction conduct, demonstrated reform and the prospect of social reintegration. Remission, both in law and in penological theory, is grounded in an assessment of the offender’s trajectory after conviction, yet LWORP sentencing effectively forecloses this evaluative space. By fixing lengthy or lifelong periods during which remission is barred without engaging with reformation-oriented considerations, courts presume the offender’s incapacity to reform. This presumption is fundamentally incompatible with a sentencing framework that treats reformation as a constitutional and normative imperative, and exposes LWORP as a punishment that abandons rehabilitative goals in favour of retributive impulses.Footnote ¹³⁶