On Bagra - Penal Populism, Capital Punishment And Sentencing Child Sex Offenders In The Indian Context

Author: LawSphereX

Category: Criminal Law

Published: 2026-08-23T20:41:21.214088+00:00

Updated: 2026-08-26T17:10:16.683+00:00

ON BAGRA: PENAL POPULISM, CAPITAL PUNISHMENT

AND SENTENCING CHILD SEX OFFENDERS IN THE

INDIAN CONTEXT

Arya Banerjee, Research Assistant – Faculty of Law, Monash University

ABSTRACT

Sexual offences committed against children are particularly heinous, requiring a punitive justice response. Cases involving child victims are of public interest as the sanctity and innocence of young people are violated, seeing the community’s condemnation inform sentencing via the voices of politicians, judicial officers and lawmakers. This short article discusses the role of penal populism and the sentencing principles as it relates to child sex offenders in India, in light of the contemporary Bagra judgement. Although Indian criminal procedure prefers life imprisonment as opposed to the death penalty, in ‘special circumstances,’ the latter is to be favoured, particularly where denunciation and retribution of just deserts outweigh rehabilitative and restorative approaches.

Introduction Sexual violence perpetrated against minors is of a particularly heinous breed. Whether redressed through institutional abuse claims via the law of torts or through the accused’s conviction in the criminal jurisdiction, child sex offenders face particularly punitive responses from agencies of justice. Communities view sexual offences involving the penetration or touching of children among the most serious of indictable offences,1 cognisant that these vile acts rob young people of their confidence, innocence and agency. Criticisms however emerge when evaluating the criminal justice system’s response to sentencing child sex offenders, wherein the public may feel that anything short of indefinite restraint or death is unjust.

Whilst the law attests that sexual violence against children is never acceptable, for example through specialised courts and instruments created by the Protection of Children from Sexual Offences Act,2 existing sentencing frameworks and judicial discretion may not adequately reflect the gravity of child sex offences. Required then is close analysis as to the law’s capacity for change to effectively deter and denounce child sex offenders in line with community views and values. However, sentencing as an exclusively judicial power is heavily regulated,3 recognising that it involves an exercise of discretion on the sentencing judge’s part. Procedural mechanisms are implemented to prevent arbitrary arrest or false imprisonment and so retain trust in the criminal justice system.

But, in the context of child sex offending, these frameworks may limit the extent to which punishment, deterrence, denunciation and retribution may be achieved. Public opinions as to child sex offenders may prioritise bringing an end to impunity over the principles of parsimony, totality and proportionality, encouraging the most serious of punishments. Mandatory sentences belong to this approach, wherein the public advocate for a fixed, consistent penalty for child sex offenders as opposed to the instinctive synthesis applied in other cases requiring that punishments be determined on an individual, fact-by-fact basis. 4 Penal populism as an approach to sentencing policy influenced by the community’s moods and sentiments fits this typology and is activated in conversations surrounding child sex offenders as offenders of the highest moral culpability.

1 Craig A. Harper and Todd E. Hogue, Measuring public perceptions of sex offenders: reimagining the

Community Attitudes Toward Sex Offenders (CATSO) scale, 21, Psychology, Crime & Law 452, 454.

2 Protection of Children from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012 (India).

3 Anup Surendranath, Neetika Vishwanath and Preeti Pratishruti Dash, The enduring gaps and errors in capital sentencing in India, 32, Nat’l Sch. India Rev 46, 60-65.

4 Justice Deepthi Arivunithi, Rarest of the rare case – the Sentencing Policy in India,

https://www.tnsja.tn.gov.in/article/Sentencing_Policy_in_India_final.pdf (last visited Jan. 24, 2025).

In light of the recent sentencing of Yumken Bagra,5 this article discusses the role of penal populism, the purposes of sentencing and the sentencing principles in punishing child sex offenders in the Indian criminal justice system. By amplifying aggravating factors including repeated offending, aggression, the age and vulnerability of the victim and complicity as salient features justifying the death penalty,6 it will be contended that public opinion and so penal populism most potently influence the punishment of child sex offenders, encouraging capital punishment as the only just outcome despite the procedural preference for life imprisonment. Penal Populism in India As per critical legal theory, the law is heavily intertwined with politics.

7 Penal populism as an expression of this connection considers politicians’ responses towards crime, utilising the public’s sentiments to increase penalties for offenders. 8 Penologist Anthony Bottoms coined this phenomenon as ‘populist punitiveness,’ noting that the ways in which office-bearers capitalise on community responses to crime to fulfil their own electoral goals have significant impacts on the criminal justice system. 9 Emeritus Professor Julian V. Roberts further developed Bottom’s populist punitiveness to include competition between political parties, observing that office-bearers introduced tough-on-crime policies whenever the community was positioned to believe that crime rates were skyrocketing and out of control.

10 Although these beliefs are often misguided, manufactured by opposing political parties to smear the ruling class, fearmongering effectively attracts votes and so sees harsher penalties legislated, often contrary to the expert knowledge offered by penologists and criminal justice policy professionals. With the rise of the media and its newsworthy narratives, provocative headlines and excessive reporting on serious offending contributes to the illusion that crime is in excess. Consequently, politicians are able to manoeuvre the public’s fears and attain office, seeing the criminal law weaponised 5 The Arunachal Times, Yumken Bagra case: Court convicts 3 for sexual assault on 21 minors; sentencing today ARUNACHAL TIMES WEBPAGE (Jan. 26, 2025: 11:16 AM), https://arunachaltimes. in/index. php/2024/09/25/yumken-bagra-case-court-convicts-3-for-sexual-assault-on-21minors-sentencing-today.

6 Justin V. Roberts, Punishing, more or less: Exploring aggravation and mitigation at sentencing in Mitigation and aggravation at sentencing (Cambridge University Press 2011).

7 Mark Tushnet, Critical legal studies: A political history, 100, YALE LJ, 1515, 1515-1516 (1990).

8 John Pratt, Penal populism (Routledge 2007).

9 Natalia Antolak-Saper, The Role of the Media in Criminal Justice Policy: Prisons, Populism and the Press (Routledge 2022) 24-27. 10 Julian V. Roberts, Loretta J. Stalans, David Indermaur and Mike Hough, Penal populism and public opinion: Lessons from five countries (Oxford University Press 2002).

as an instrument of public approval as opposed to sustainable, expert-guided policy. 11 In the last two decades alone, penal populism has significantly impacted Indian criminal law. Interconnected with a rise in mass media and the privatisation of news agencies, reporting as to significant criminal matters including the 2008 Mumbai terrorist attacks, 2012 Nirbhaya rape case and 2024 Kolkata rape-murder have shaped law reform. Noting that India has retained capital punishment, collective to these cases were politicians’ push to put the offenders to death. Impacted by procedural delays, politicians exploited the public’s lack of knowledge surrounding criminal proceedings to promise excessively harsh tough-on-crime policies, ultimately culminating in them procuring office.

Subsequent laws were products of penal populism, built on manufactured perceptions of crime as opposed to tangible fact. The role of penal populism has been particularly potent regarding India’s sentencing for sex offenders and the push towards the death penalty. Up until the 2012 Nirbhaya rape case,12 the accepted doctrine was that the death penalty is of last resort and only to be used in particularly heinous circumstances, with life imprisonment to be favoured as the alternative deterrent. However, in light of community protests and vigils, political candidates begun to shun the government of the day by promising tougher penalties to prevent further sexual offending, despite law reform bodies contending that capital punishment is not an effective deterrent.

Similarly, following the 2024 RG Kar rape-murder, the enactment of the Aparajita Women and Child Bill to mandate the death sentence if a victim is killed or left permanently vegetative was largely informed by political backlash facing the West Bengal government as opposed to judicial findings. The culture of penal populism remains heavily embedded into India’s politicisation of criminal justice, impacting sentencing as judicial officers have no choice but to follow statute in line with the separation of powers doctrine. Principles and Purposes of Sentencing Child Sex Offenders In sentencing a child sex offender, sentencing judges must consider the purposes of punishment, namely the twin principles of deterrence and correction. Sentences must also be decided on a fact-by-fact basis.

Sentencing judges should uphold proportionality as a key sentencing principle, wherein the sentence corresponds with the gravity of the offending. Weight may also be given to parsimony, that a sentence be no harsher than necessary, and 11 Neha Rajesh, Penal Populism in India: The Expansion of the Death Penalty and the Rise of Extrajudicial Justice, Forthcoming Indian Journal of Legal Review (2024).

12 Pupul Dutta Parasad and Sanjay Vashishtha, NEOLIBERALISM AND THE RISE OF PENAL POPULISM IN

INDIA, 60, ILI J’L 389, 393 (2018).

totality, that a sentence be reflective of the entire impact of the crime. Judicial discourse suggests that historically the Indian criminal justice system has been more favourable to the accused as opposed to victims of crime, necessitating a more punitive response and so enabling penal populism. For sexual offences committed against children as a particularly heinous crime, greater weight may be placed on the gravity, motive and nature of the offence as opposed to mitigating factors. General deterrence is of importance given the vulnerability of children and easy access to children via institutions. Community protection as a way to protect children is also paramount, wherein a sentence must be effective in keeping sexual predators away from further offending.

These purposes are also transferable to sentencing for child abuse material and digital sexual offending including deepfakes, use of carriage services and creating, viewing or disseminating child pornography. Considering mitigating and aggravating factors, the severity of child sex offences are such that little leniency may be afforded. Even if the accused has no previously recorded conviction, is of good behaviour, has prospects for rehabilitation and has other psychosocial factors capable of mitigating a sentence, the objective gravity of the offence trumps all. Determining the objective gravity of child sex offending can include a consideration of the number of victims, the age of the victims, the vulnerability and class of persons the victims belonged to, the nature of the sexual abuse, to which a sentence must adequately condemn the accused’s wrongful conduct.

For child sex offenders who abuse multiple victims repeatedly, the overall gravitas of the offence must inform a sentence, including victims’ responses to the sexual offending and consequential trauma. Medicolegal research affirms that the impacts of sexual violence against children are dire, yielding mentally-ill health, reclusion, psychosocial instability and in severe cases self-harming tendencies or suicidality. 13 The principle of proportionality must then consider the extent to which the accused abused their trust, authority or relationship with the minor in perpetrating the abuse as it relates to the degradation of the relationship and the child’s subsequent trauma. Under this approach to sentencing child sex offenders, there is scope for penal populism.

The objective gravity of sex offences committed against children is of the highest moral culpability, to which public responses invite harsh punishment. The death penalty as 13 Ingrid Walker-Descartes, Gillian Hopgood, Luisa Vaca Condado and Lori Legano, Sexual violence against children, 68, Pediatric Clinics 427, 429-433 (2021).

exercised in India for serious sexual violence is a product of penal populism,14 rooted in community backlash to key cases including the Nirbhaya rape and RG Kar rape-murder. The legislature as creators of law have been able to satiate public morale and so extend the death penalty on the grounds that offences against women and children violate an inviolable sacredness, seeing penal populism manifest in practice. The judiciary is obliged to follow statute and consequently extend the death penalty, perhaps justifying this irreversible sentence as reasonable, just and proportionate to protect vulnerable persons, appropriately recognise the trauma sustained by victims and so promote empowerment and community safety.

15 This manifested in the political response to the Nirbhaya rape, for example, where the Prime Minister supported the death penalty against the perpetrators as a mechanism to reaffirm the importance of women’s safety and show solidarity. Cognisant that a prerogative of mercy exists for the executive, for the ruling apparatus to promote the death penalty epitomises penal populism. The principles and purposes of sentencing are then a reflection of social attitudes towards sexual violence materialised by politicians bearing office, seeing penal populism and sentencing align in tandem. Bagra: Sentencing and Penal Populism in Practice A contemporary application of the aforementioned relationship between penal

populism and the purposes and principles of sentencing is modelled by a recent judgement of the Yupia Sessions Court. In September 2024, Yumken Bagra was found guilty of multiple acts of historical sexual abuse against 21 child victims when he was a school ward in 2014. The accused was prosecuted pursuant to both the now repealed Indian Penal Code and the active Protection of Children from Sexual Offences Act for offences including sexual assault, harassment, rape and affiliated inchoate offences. Special investigations further discovered that Bagra would drug the children and threaten them with harm should they disclose their abuse, causing some victims to experience suicidality. Special judge Justice Jaweplu Chai awarded Bagra the death penalty.

16 Two other accused were sentenced to 20-years imprisonment for 14 Anmol Jain, Understanding Penal Populism in the Backdrop of Unfounded Developments in Rape Laws, 5, Indian JL & Pub. Pol'y 5 41 (2018). 15 Leavides Domingo-Cabarrubias, Why capital punishment for rape is a regressive step for women’s rights ELEOS BLOG (Jan. 23, 2025 at 1:39 PM). 16 The Arunachal Times, Yumken Bagra case: Court convicts 3 for sexual assault on 21 minors; sentencing today ARUNACHAL TIMES WEBPAGE (Jan. 26, 2025: 11:16 AM), https://arunachaltimes. in/index. php/2024/09/25/yumken-bagra-case-court-convicts-3-for-sexual-assault-on-21minors-sentencing-today.

aiding or abetting Bagra in the furtherance of his offending, wherein victims were discouraged from reporting their trauma in fears that it would impact the school’s reputation. It is the first time in India that a death sentence has been ordered for a sex offender where the victims were not killed in the furtherance of the crime at hand. News agencies contend that the public of Arunachal Pradesh and India more broadly have welcomed the death penalty, acknowledging that it is a just punishment for Bagra aptly reflecting the gravity of his offending. However, a close reading and consideration of the context surrounding Bagra’s sentencing, particularly its proximity to the RG Kar rape-murder, evidence penal populism in practice.

In classifying sexual offences including penetration as the most serious of crimes, the death penalty is activated on grounds that such forms of violence fit the rarest of the rarest doctrine. 17 Although it may be generally accepted that the unlawful killing of another causing loss of life is the paradigm offence, certain advocates have described sexual violence involving penetration as even more gruesome on grounds that it takes the victim’s life away without killing them. The rationale is that in committing sexual violence against children, victims lose their innocence, confidence and autonomy, perhaps even their social standing and honour as they coerced into carrying the burden of trauma into their adulthood.

Penal populism enabling the death sentence for sexual violence perpetuates the perception of victims being the living dead,18 affirming an eye-for-an-eye approach to sentencing as witnessed in Bagra’s case. Key criticisms to this approach to sentencing child sex offenders, particularly the girl child, are rooted in the perpetuation of patriarchal ideals and differing interpretations of procedural justice. When influenced by penal populism, the death sentence prioritises just deserts, deterrence and correction as opposed to restoration and rehabilitation. Killing rapists and sex offenders is often justified by their conduct violating persons’ inviolable chastity and honour, particularly for young girls as their bodies become vessels for offenders to derive sexual gratification.

19 The focus of the penalty then rests on correcting the severance of chastity and consequential shame that a victim may sustain as opposed to responding to the trauma of the sexual violence itself. This substantive criticism intersects with procedural justice, where the death sentence may not be what defines a just outcome for victims. Procedural integrity, including trial without undue delay, sensitivity from the justice system and ongoing solidarity

17 Bachan Singh vs State Of Punjab, AIR 1980 SC 898.

18 Bonnie Mann, Rape and social death, 24, Feminist Theory 377, 381-386 (2023).

19 Udita Barua and Mohammad Belayet Hossain, Patriarchy and the Rights of Rape Victims: Law and Practice, 9, Lex Publica 79 (2022).

from justice agencies is what may define a just outcome as opposed to mandating death of the offender. Applying this rationale to Bagra’s verdict, the opposition may attest that killing Bagra does not clear his victims of the label of being a sexually abused child. These victims must endure the trauma of Bagra’s abuse and the affiliated social backlash to it, impacting how their communities perceive them. In this way, penal populism as it promotes excessive punishment is to blame for potential injustice, for the offender’s death may not aptly aid victims’ recovery. By contrast, life imprisonment for the accused forcing them to endure the shame and remorse of their heinous acts may be more welcome,20 although this narrative may not support politicians in fulfilling electoral goals via tough-on-crime campaigns.

Conclusion Evident in this discussion is the role penal populism plays in proliferating the death penalty, particularly for child sex offences cases as especially heinous offences capable of being moulded to fit political agendas. Influenced by community outlash as to violence against children, the narrative of saving the children is manipulated to craft punitive campaigns, seeing politicians attain office. Despite expert evidence and penology attesting that alternative sentences may more appropriately pursue justice, penal populism enables the legislature to abuse their absolute parliamentary sovereignty and so constrain the judiciary’s approach to sentencing. A more holistic approach may instead be greater consideration of the principles and purposes of sentencing independent to community values as they strive to focus on victims’ experiences more specifically, facilitating redress.

20 Ralph Slovenko, Remorse, 34, J’L Psych & Law 397 (2006).