Exploring punitive populism and performative justice in India’s trial courts

On 29 April 2025, a trial court in Gujarat, India, sentenced a 36-year-old man to death for the rape and murder of a 10-year-old girl. The case attracted widespread public and media attention, not just for the brutality of the crime, but also for the language used by the presiding judge, who remarked that “even a double death sentence awarded to the accused would not suffice”—reflecting a deeply emotive and retributive orientation in the court’s reasoning. The trial was concluded in 72 days, a pace that appeared more performative than procedural. This blog post contends that India’s retention of the death penalty and frequent capital sentencing by trial courts reflect an entrenched form of punitive populism—a justice system shaped more by societal anger than by reasoned adjudication. Using a three-part structure, the post examines how trial courts often ignore the structured discretion mandated by the Supreme Court of India’s framework established in the case of Bachan Singh (1980)[1]; how new criminal laws institutionalise performative severity; and how abolitionist advocacy can reframe justice beyond retribution.

Trial courts and the ritual of symbolic sentencing

The Gujarat court relied on the three established legal tests that are commonly applied in capital sentencing: the 'crime test' (examining the brutality and circumstances of the offence); the 'criminal test' (looking at the offender’s background and potential to reform); and the 'rarest of rare' doctrine (requiring that the death penalty be imposed only when life imprisonment is unquestionably inadequate). Applying these tests, the court concluded that the crime was heinous and calculated, committed without remorse or any mitigating circumstances, and therefore warranted the death penalty. However, this judgment is a textbook case of punitive populism, which illustrates how capital sentencing, especially in cases involving gender-based violence, risks becoming an instrument of public catharsis rather than a product of legal reasoning. In such cases, the justice system appears to bend to public clamour for the harshest punishment, and the courtroom is transformed into a moral theatre, where trials become vehicles for articulating societal condemnation.

The law requires measured sentencing based on aggravating and mitigating factors; however, trial courts frequently bypass this requirement in favour of dramatic condemnation. Data from Project 39A’s Death Penalty in India: Annual Statistics Report (2024) shows that in 2023 and 2024, the Supreme Court did not confirm a single death sentence, marking two consecutive years without any affirmations—signalling a growing reluctance by the Supreme Court to uphold capital punishment. Despite this, trial courts imposed 139 death sentences in 2024, with over 90% convicted without any analysis of mitigating circumstances, such as mental illness, socio-economic background, or conduct in prison, as required by the principles laid down in Bachan Singh v. State of Punjab (1980). Under Section 22(2) of the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS), which serves as the reformed and updated version of the erstwhile Code of Criminal Procedure, 1973 (CrPC) in India, any sentence of death passed by the Additional Sessions Judge is subject to confirmation by the High Court. Yet these symbolic death sentences at the trial level rarely withstand appellate scrutiny, with higher courts overturning most of the sentences. The damage, however, is already inflicted at the trial stage, where the spectacle of condemnation resonates more strongly than adherence to legal standards. The judgments are often swayed by gruesome details and public pressure, avoiding the nuanced task of individualised sentencing. A study of 215 capital cases across Delhi, Madhya Pradesh and Maharashtra (2000-2015), revealed that 51% of trial judgments did not consider any mitigating factors. In many cases, trial courts pronounced the death sentence on the same day as conviction, leaving no opportunity for a thorough hearing on the accused person’s background or mental state. Such expedient delivery of judgment stands in stark contrast to the procedural safeguards outlined by a three-judge bench of the Supreme Court in Re: Framing Guidelines Regarding Potential Mitigating Circumstances To Be Considered While Imposing Death Sentence (2022). The ruling emphasises the importance of a separate hearing and the necessity of a background analysis of an accused person at the stage of sentencing. As Justice Ravindra Bhat observed in Manoj v. State of Madhya Pradesh (2022)[2], the 'rarest of rare' doctrine, which was first articulated by the Supreme Court in Bachan Singh, has devolved into a ritual invocation, lacking substantive application. These sentencing decisions at the trial level are not anomalies; rather, they reveal a broader structural tendency in Indian trial courts to equate justice with severity. The result is a legal culture that encourages symbolic sentencing as a way to mirror public fury. These arbitrary sentencing processes are not an exception—they are in fact the rule, reinforcing a cycle of condemnation that undermines constitutional principles.

The Gujarat case epitomises this trend: the judge’s rhetorical remark that “even a double death sentence would not suffice” illustrates how visceral responses can overshadow the legal obligation to consider defendants’ prospects for rehabilitation. When courtrooms are transformed into performative spaces, prioritising theatrical condemnation over measured deliberation, they risk undermining the principles of fairness and proportionality that legitimise the criminal justice system

A compelling illustration of this failure to meaningfully engage with mitigation is found in the case of Rameshbhai Chandubhai Rathod v. State of Gujarat (2011)[3], in which a 27-year-old watchman was sentenced to death for the rape and murder of an eight-year-old girl. The trial court characterised the case as falling within the 'rarest of rare' category, focusing on the crime’s heinousness and the breach of trust, while paying scant attention to the offender’s mitigating circumstances. Justice A.K. Ganguly’s dissenting opinion, however, highlighted that the lower court had failed to meet the legal obligation to consider mitigating circumstances during sentencing. Justice Ganguly relied on the precedent set in Mulla v. State of U.P. (2010)[4], which affirmed that, despite the nature of the crime, mitigating circumstances can allow substitution of the death penalty with a life sentence. Ultimately, Justice Ganguly’s view prevailed, and the Supreme Court commuted the sentence to life imprisonment. This outcome underscores how trial courts routinely neglect mitigation, resulting in disproportionate, emotionally charged capital sentences that serve more as symbolic retribution than as measured and individualised justice.

In a notable decision in Manoj v. State of Madhya Pradesh (2022), the apex court reminded trial courts that imposing a death sentence without a well-documented inquiry into mitigating factors is an error. This guidance was intended to correct widespread non-compliance with the principles laid down in Bachan Singh. However, even as the judiciary has emphasised the importance of individualised sentencing, recent legislative developments have moved in the opposite direction. The Bharatiya Nyaya Sanhita (BNS), enacted in 2023 as part of India’s new criminal law reforms, has broadened capital offences from twelve to eighteen categories—diluting the 'rarest of rare' principle and risking the normalisation of death sentencing. A change like this, especially at a time when much of the world is limiting or abolishing capital punishment, signals a shift toward crime-centric sentencing, focusing only on what was done, not who did it or why. It reflects a growing disconnect between the humane, individual-focused approach that the Constitution mandates and the populist, hard-line approach now embedded in the legal framework.

One especially troubling shift is the new 30-day deadline for filing mercy petitions under Section 472(1) of the BNSS. While time-bound mercy petitions might appear to resolve the problem of delays in mercy pleas, this change is procedurally and constitutionally problematic. In Shatrughan Chauhan v. Union of India (2014)[5], the Supreme Court acknowledged that inordinate delays in disposing of mercy petitions amount to mental torture, thereby, violating Article 21 of the Constitution of India, which guarantees the right to life and dignity of the accused person. However, instead of addressing the administrative lapses, the new law shifts the burden onto the accused person, often ill-equipped to respond within deadlines due to a lack of access to lawyers, documents, or even an understanding of the mercy process. Imposing deadlines for mercy pleas can be heavily concerning and unconstitutional, especially since most death-row prisoners are economically and educationally vulnerable. Moreover, these changes may foreclose interventions by civil society actors, reducing space for advocacy and critical review. 'Death row phenomenon' – the prolonged psychological trauma experienced by those awaiting execution – was a key reason the 262nd Law Commission Report, chaired by Justice A.P Shah, suggested moving away from capital punishment. Ironically, while the new law aims to streamline the path to the gallows, it may trigger more injustice.

Closing the curtain on spectacle

To truly honour victims and support survivors, abolitionist voices argue that we must shift away from spectacle and retribution toward prevention, accountability and survivor-centric reforms. The challenge is to respond to the public outcry in a way that genuinely improves safety and healing, rather than merely capitulating to vengeance. Such a sentiment echoes in the findings of the Justice Verma Committee (2013), which was convened in the aftermath of the 2012 Delhi gang-rape and murder case commonly referred to as the ‘Nirbhaya case’. The committee rejected the introduction of the death penalty for rape, arguing that it would not deter crime and could even worsen under-reporting—particularly in cases where the perpetrator is a known individual. This concern is substantiated by the Ministry of Women and Child Development’s Study on Child Abuse: India (2007), which found that 72.1% of child respondents had not reported their experiences of sexual assault to anyone, because the perpetrator was a ‘known accused’. The introduction of capital punishment in such cases risks increasing the pressure on victims, particularly children, to remain silent. Lawmakers’ embrace of a ‘death penalty = justice’ model for sexual violence fuels trial courts’ willingness to reflexively hand down capital punishment. As long as retributive justice remains the dominant narrative, trial courts will continue to issue death sentences with little regard for individualised scrutiny.

In conclusion, the abolitionist discourse in India should focus on grassroots reform, where growing symbolic death sentences awarded by the trial courts, particularly in gender-based violence cases, may offer a momentary sense of catharsis, but do not equate to justice. When judicial pronouncements adopt inflamed rhetoric to convey moral condemnation, or a legislature hastily adds new capital crimes, they tap into public fury but often sidestep the harder path to real solutions. India’s abolitionist movement therefore aspires to respond meaningfully to public grief without descending into vengeance. Abolition is not a denial of justice; it is a demand for better justice, through better forensic infrastructure, witness protection programmes (so that powerful offenders cannot scare witnesses into silence), victim compensation schemes and rehabilitation programmes. Alongside these measures, the discourse must also advocate for strengthening alternative sentencing frameworks, such as life imprisonment with opportunities for reform. Introducing clear sentencing guidelines that constrain judicial discretion is essential, particularly in light of the principle of individualised sentencing and the standard of collective conscience. Public education campaigns on justice and dignity should accompany legal reform, promoting greater awareness around the limitations of retributive justice. An abolitionist discourse can champion survivor-centric reforms by making the justice system more responsive, sensitive and effective. Cultural interventions—through schools, media and community engagement—must also be encouraged to challenge the social acceptance of punitive norms and foster a more humane justice ethic.

Ending the death penalty is not a stand-alone gesture; it should come with a commitment to strengthen the criminal justice system from bottom to top, addressing the social roots of violence. The Justice Verma Committee concluded in its report that capital punishment fails to achieve any valid penological goals—neither deterrence nor reformation. If deterrence has failed, it is time to shift toward a preventive framework. Prevention involves improving investigations, protecting survivors, addressing structural inequalities and reforming police culture. It means responding to violence before it occurs, rather than staging justice after the offence. This encapsulates the idea that abolition must be accompanied by systemic change that prioritises healing, prevention and equality before the law. By shifting the focus from symbolic retribution to substantive change, trial courts can honour the victim’s memory in a far more meaningful way. In doing so, the trial courts reaffirm that the rule of law is not theatre, and that our collective conscience is best served by compassion, reason and lasting change, not the spectacle of a noose.

Simran Chawdhary is pursuing an MSc in Criminology and Criminal Justice at the Centre for Criminology, University of Oxford. She is a practising criminal lawyer in India, appearing before trial and appellate courts. Her interests include public service-oriented policing, custodial deaths, anti-riot laws and the abolition of the death penalty.