The death penalty has always been a contentious issue in constitutional democracies like India. While capital punishment is not per se unconstitutional, its application has been circumscribed by the Supreme Court of India through a judicially evolved doctrine known as the “rarest of the rare” doctrine. Introduced in Bachan Singh v. State of Punjab (1980), this doctrine was meant to impose a high threshold on awarding the death penalty.
However, despite the doctrine’s noble intention of restricting its use, inconsistencies and subjectivities have crept into its application. This article attempts to critically examine whether there exists uniformity in the application of the “rarest of the rare” doctrine in India and evaluates the need for reform.
Evolution of the Doctrine
The “rarest of the rare” doctrine was judicially propounded in the Bachan Singh case, wherein a constitutional bench of the Supreme Court upheld the constitutionality of the death penalty under Section 302 of the Indian Penal Code, 1860. The Court laid down that the death penalty should only be awarded in the “rarest of the rare” cases, and even then, only when the alternative option of life imprisonment is “unquestionably foreclosed.”
This principle was further crystallised in Machhi Singh v. State of Punjab (1983), where the Court enumerated five categories of cases where the doctrine might apply:
- The manner of commission of murder
- Motive
- Anti-social or socially abhorrent nature of the crime
- Magnitude of the crime
- The personality of the victim
Judicial Discretion and the Problem of Inconsistency
While the doctrine was formulated to guide judicial discretion, it paradoxically opened the door to wide discretion that has often resulted in inconsistency. Different benches of the same court have, over time, interpreted the “rarest of the rare” standard differently, leading to divergent outcomes in similar factual circumstances.
For instance, in Amrit Bhushan v. State of U.P. (2014), the Supreme Court commuted a death sentence for a brutal rape and murder of a child, citing mitigating factors. Conversely, in Dhananjoy Chatterjee v. State of West Bengal (1994), the death penalty was upheld for a similar crime. Such disparities reflect the lack of a uniform yardstick in interpreting the doctrine.
Similarly, the Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) judgment lamented the inconsistent application of the doctrine and stressed the need to give due weight to mitigating factors like age, socio-economic background, and possibility of reform.
Mitigating vs. Aggravating Factors
One of the most contentious aspects contributing to non-uniformity is the subjective evaluation of mitigating and aggravating circumstances. While the judiciary is mandated to balance both, there is no exhaustive or definitive list of such circumstances, leaving it to judicial interpretation.
Mitigating factors such as lack of criminal history, potential for reformation, or young age are not uniformly applied. Courts have also varied in considering post-conviction conduct, mental illness, or socio-economic background. This subjectivity, although inevitable to some extent, results in inconsistent application of the doctrine.
The Supreme Court in Shankar Kisanrao Khade v. State of Maharashtra (2013) undertook a comparative study of various death penalty cases and concluded that arbitrariness is an inherent issue, and that the standards for awarding capital punishment are far from uniform.
Psychological and Emotional Bias
The role of emotional and psychological influence on judges also cannot be ignored. Heinous crimes naturally evoke strong emotional reactions, which can cloud objective reasoning. Media trials, public sentiment, and the gruesomeness of a crime can often lead to the death sentence being upheld despite viable mitigating factors.
Moreover, the judge-centric nature of sentencing decisions increases the chances of personal beliefs affecting the final outcome. In Rajendra Pralhadrao Wasnik v. State of Maharashtra (2012), the Court initially upheld the death sentence but later commuted it, pointing out that relevant mitigating factors were overlooked. This reinforces concerns about the subjective lens through which “rarest of the rare” is assessed.
Need for Legislative or Judicial Reform
The absence of clear legislative guidelines and the inconsistency in judicial pronouncements demand an institutional reform in how capital sentencing is approached in India. The Law Commission of India in its 262nd Report (2015) recommended the abolition of the death penalty for all crimes except those related to terrorism and waging war against the state, citing concerns of arbitrariness and miscarriage of justice.
There is also a growing call for adopting a sentencing framework that allows courts to follow a structured and transparent approach. For instance, a separate sentencing hearing post-conviction, as mandated in Bachan Singh, is not always followed with due rigour. Implementing pre-sentencing psychological assessments, victim impact reports, and parole board evaluations can ensure a more nuanced approach.
Comparative Jurisprudence
Looking at other jurisdictions, India can draw valuable lessons. In the United States, the sentencing phase in capital trials includes rigorous procedures involving jury deliberation, presentation of mitigating and aggravating evidence, and appeals. The UK and most of Europe have abolished the death penalty altogether, citing the inherent fallibility of the justice system and the risk of executing innocents.
South Africa’s Constitutional Court in State v. Makwanyane (1995) abolished the death penalty, ruling that it violated the right to life and dignity. India, while not going down that path yet, must reflect on the arbitrariness and emotional influence in its current framework.
Towards Uniformity: The Way Forward
- Codification of Guidelines: There must be statutory guidelines clearly demarcating the mitigating and aggravating circumstances for capital sentencing. A codified framework will significantly reduce subjective disparities.
- Separate Sentencing Hearings: Trial courts must mandatorily conduct a separate, detailed sentencing hearing post-conviction to ensure full consideration of relevant factors.
- Judicial Training: Judges must be sensitised through training on sentencing jurisprudence, psychology of crime, and unconscious bias to enhance objectivity.
- Data-Driven Analysis: A national registry of death penalty cases with open access to sentencing patterns can help in comparative analysis and greater accountability.
- Appeal Bench Uniformity: A larger, constitutionally-mandated appellate bench for death penalty cases may help bring consistency in verdicts across cases.
Conclusion
The “rarest of the rare” doctrine was envisioned as a protective barrier against the arbitrary imposition of the death penalty. However, in the absence of objective criteria and uniform application, it has often resulted in more confusion than clarity. The high degree of judicial discretion, emotional influence, and lack of procedural safeguards undermine the very essence of the doctrine.
For a democracy built on constitutional morality, the imposition of the death penalty must be consistent, transparent, and free from subjectivity. Uniformity in its application is not just a matter of procedural fairness, but of constitutional necessity. As India continues to balance the rights of victims and the accused, the time is ripe for a re-evaluation of the doctrine to restore public confidence in the criminal justice system.
