Analyzing alternatives to death penalty sentencing a new judicial trend evolved by the Supreme Court of India in death penalty cases

Abstract

The alternative sentencing to death penalty has been devised by the Supreme Court of India to deal with those varieties of cases which falls in the range of life imprisonment (in practice fourteen years) and death so that the sentence to be awarded is proportionate and in consonance with the gravity of crimes taking into account complex interplay of aggravating and mitigating circumstances. The alternative sentencing to death penalty will be awarded in those cases where the court feels that award of death may be excessive and at the same time life imprisonment (in practice fourteen years) may be highly disproportionate. The court will resort to alternative sentencing to death penalty by awarding sentences such as life imprisonment till the end of life or fixed term life sentencing such as 20, 25, 30, or 35 years or more without the convict being entitled to any remission by the executive. However, due to devising of this alternative sentencing, Section 433-A of Criminal Procedure Code, 1973 is reduced to nullity because executive will not be able to exercise the power of remission in those varieties of cases where judiciary has resorted to alternative sentencing to death. As a result, a number of questions are raised regarding the legality and viability of alternative sentencing to death penalty in Indian criminal sentencing system. First and foremost, the question is whether the alternative sentencing to death penalty violates doctrine of separation of power and hence constitutionally unsustainable due to the fact that the prescription of punishment is the sole prerogative of the law makers and not judiciary. The researcher is confronted with the question as to whether by prescribing or devising alternative sentencing to death penalty, the judiciary has gone overboard and has breached constitutional legal limitations. The Constitution Bench in Union of India v. V Sriharan (2014 SC), while upholding the constitutionality of alternative sentencing to death penalty, has said that it is modified sentencing and not