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The Principle Of Rarest Of Rare: A Critical Analysis

The first form of punishment under Section 53 of The Indian Penal Code[1] (hereinafter, 'the IPC') is death penalty. Death penalty as an offence has been prescribed for various offences under the IPC including the offence of murder defined under Section 300.

Section 300 however, prescribes two forms of punishment i.e death penalty and life imprisonment wherein life imprisonment is followed as a rule and death penalty is to be given only in exceptional cases.
This category of exceptional cases has been defined as rarest of rare by the Honourable Supreme Court of India (hereinafter, 'the Apex Court'). Thus, death penalty for the offence of murder under the IPC can be granted only in these exceptional cases and not otherwise.

However, it is absolutely at the discretion of the court to award death penalty for the offence of murder in any particular case and thus vagueness and arbitrariness is bound to arise.

On 20th March, 2020, early in the morning, the four men convicted of gang raping Nirbhaya (name changed), a Delhi physiotherapy intern in December 2012, were finally hanged till death. Their execution was already deferred three times. This has again opened the debate over death penalty under Indian laws.

The Apex Court in the landmark case of Bachan Singh v. State of Punjab[2] laid down that life imprisonment is the rule and death sentence is an exception. It would be important to mention the brief facts of the case.
Bachan Singh, in Criminal Appeal No. 273 of 1979, was tried, convicted and sentenced to death by the Sessions Court under Section 302 IPC, for the murder of Desa Singh, Durga Bai and Veeran Bai.

The High court confirmed his death sentence and dismissed the appeal. The advocate for the appellant (the accused), H.K. Puri submitted that in view of the ratio of Rajendra Prasad v. State of Uttar Pradesh[3], the courts below were not competent to impose death penalty on the appellant. It was submitted by the counsel that neither the circumstance that the appellant was previously convicted for murder and committed these murders after he had served out the life sentence in the earlier case, nor the fact that these three murders were extremely heinous and inhuman, constitutes a special reason for imposing the death penalty.

Held: In accordance with the majority opinion, the challenge to the constitutionality of section 302[4] in so far as it provides for the death sentence as also the challenge to the constitutionality of section 354(3)[5] of the Code of Criminal Procedure, 1973[6] (hereinafter, the CrPC), failed and was rejected.

There were several circumstances justifying the passing of lighter sentence, as there were countervailing circumstances of aggravation. The court held that it cannot feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. Nevertheless, it cannot be overemphasized that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and explosive construction by the courts in accordance with the sentencing policy written large in section 354(3).

The judges should never be blood thirsty and hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, showed that in the past, courts have implemented the extreme penalty with extreme infrequency:
A fact that attests to the caution as well as compassion which they have always brought to bear on the exercise of their discretion of sentencing in such grave matters. It is thus, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by it, will discharge the onerous function with evermore scrupulous care and human concern, directed along the highroad of legislative policy outlined in section 354(3) viz., that for persons convicted under Section 302, life imprisonment is the rule and death sentence is an exception. A real and abiding concern for dignity of human life concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done except in rarest of rare case when the alternate option is unquestionably foreclosed.

For all the foregoing reasons, the Court rejected the challenge to the constitutional validity of the impugned provisions contained in Section 302, IPC and 354(3), CrPC.

In accordance with the majority opinion, the challenge to the constitutionality of section 354(3) of the CrPC, failed and was rejected.

Certain guidelines were laid down in the case of Bachan Singh:

  1. Death penalty can be awarded only in the gravest cases of extreme culpability.
  2. The circumstances of the offender along with the circumstances of the crime have to be taken into consideration.
  3. When a sentence of life imprisonment seems inadequate having regard to the nature and circumstances of the crime, only then a death sentence may be awarded.

The aggravating and mitigating circumstances have to be balanced.[7]

Aggravating and mitigating circumstances:

The case of Bachan Singh makes a watershed in sentencing. In making the shift from the crime to the crime and the criminal, the Constitution Bench in Bachan Singh[8] looked at the suggestions given by the learned counsel who appeared in the case. These suggestions, when examined, indicate that insofar as aggravating circumstances are concerned, they refer to the crime. These are:
  1. If the murder has been committed after previous planning and involves extreme brutality; or
  2. If the murder involves exceptional depravity; or
  3. If the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed while such member or public servant was on duty; or in consequence of anything done or attempted to be done by such member of public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
  4. If the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the CrPC, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the CrPC.[9]

In so far as mitigating circumstances are concerned, they make reference to the criminal. These are:
  1. That the offence was committed under the influence of extreme mental or emotional disturbance.'
  2. The age of the accused. If the accused is young or old, he shall not be awarded death penalty.
  3. The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
  4. The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
  5. That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
  6. That the accused acted under duress or domination of another person.
  7. That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.[10]

In the case of Bachan Singh, court noted that death penalty is acknowledged in the constitution. Also, the new sentencing procedures were held to be in the nature of safeguards.

The judgment in the case of Machhi Singh and others v. State of Rajasthan[11] did not only state the above guidelines but also specified the mitigating circumstances that could be considered by the court while determining such serious issues. The apex court in Machhi Singh revived the balancing of aggravating and mitigating circumstances through a balance sheet theory.

In doing so, the court sought to compare aggravating circumstances pertaining to a crime with the mitigating circumstances pertaining to a criminal. It hardly needs to be stated, with respect, that these are completely distinct and different elements and cannot be compared with one another. A balance sheet cannot be drawn up of two distinct and different constituents of an incident. Nevertheless, the balance sheet theory held the field post Machhi Singh.[12]

Landmark Verdicts:
When we talk about the principle of rarest of rare, there are some landmark judgments wherein the courts in India have applied the principle in coming to a conclusion. In Shankar v. State of Tamil Nadu[13], the Supreme Court observed that it cannot be said that since it may not be possible to eradicate the crime itself, criminals cannot be awarded death sentence.

When two members of an unlawful assembly went forward to deal with their target by disposing him of and, on being not able to get him, gunned down his two young girls whom they chanced to spot on way back, the apex court held that it was not one of those rarest of rare cases in which death penalty would be warranted.[14]

Where a bank clerk in his lure to rob the contents of the strong-room of his bank killed an officer finding no other weapon on the spot than the stitcher lying there, the apex court came to the conclusion that the nature of the weapon showed that the accused acted under a momentary impulse and not in a pre-planned manner and that the death sentence awarded to him ought to be reduced to life imprisonment.[15]

On the other hand, in the matter of Kehar Singh[16] the Supreme Court held that the same came under the category of rarest of rare. It wasn't simply a murder. It was the crime of assassination of a duly elected Prime Minister of India. There wasn't any personal motivation. The aggrievements was as to an action taken by the government in the exercise of its constitutional powers and duties.

The security guards who were duty bound to protect the Prime Minister themselves assumed the role of assassins. It was a betrayal of its worst kind. It was a murder most foul and senseless. Those who executed the plot and those who conspired with them therefore, all fell in the category of rarest of rare. Death penalty is not awarded in cases where the origin of the transaction is not clear and because of involvement of a number of persons it is not possible to attribute a particular act to a particular accused.[17]

Where the accused attacked and caused injures to all members of his brother's family including children and others as a result of which four died but it seemed that the accused was in a highly disturbed mental state, the murders being not committed for personal gain, the court said that the accused would not be a menace to the society if allowed to live and there being no direct evidence to connect the accused with the offence, death sentence could not be awarded. Where the accused with the intention to rob the passengers, sprinkled petrol in a bus and set it ablaze, not allowing the passengers to escape resulting in death of 23 passengers, the case fell within rarest of rare cases and, therefore, the death penalty awarded to them was confirmed.[18]

In matters arising out of bride-burnings for dowry demands, the Apex Court has suggested that the normal sentence for murder now is life imprisonment and not death and court has to record special reasons for awarding death sentence in any given case, which means special facts and circumstances of the case justifying the extreme penalty and though a balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage, in the case of death due to bride-burning, a death sentence may not be improper.[19]

Where the dying declaration was the chief source of evidence against the accused husband and it was found to be full of falsehood, acquittal came naturally to him.[20] Circumstantial evidence showed that accused husband burnt his wife to death. Post mortem report was that death was due to shock and toxsemia due to fire burns. The circumstances suggested that there was no suicide, nor was it an accident. There was also evidence of cruelty for bringing small dowry and extra-marital relations. The accused had a strong motive to get rid of her. There was, hence, no error in conviction under Sections 302, 304B[21] and 498A[22]. The court listed factors which would show suicide, or accident.[23]

The victim, a 16-year old girl, was alone in the house and preparing for her exams. The two accused were working in the house. They took advantage of the situation. They raped her, strangulated her by her undergarments and caused injuries to her with a sharp weapon. They threw the body in a septic tank in the backyard, which showed a disregard of respect a human dead body. No mitigating circumstances were pointed out for reducing sentence. The court said that it was rarest of rare cases, in which capital punishment was rightly awarded to both the accused.[24]

It was established on the basis of circumstantial evidence that the accused raped and killed two minor girls below the age of 10, convicted earlier for a simple rape. Death sentence was awarded. The High Court and Supreme Court confirmed it being in the rarest of rare category.[25]

It was a case of atrocities committed by members of an upper caste on persons belonging to lower caste. Eighteen members belonging to upper caste raided as do coils in the houses of lower castes. Eight persons were tied with ropes, thrown into river boats, killed there and then abandoned to the care of area of strong currents of river. Most of the bodies could not be recovered. The trial court convicted all eighteen persons. The High Court acquitted them all. The Supreme Court gave benefit of doubt to the twelve persons.[26]

An unlawful assembly came into being with the object of finishing persons about whom the rioters believed to be responsible for defilement of a mosque. The accused joined the assembly and caused death of one person. Death sentence imposed on him was commuted to imprisonment for life.[27]

An educated woman was involved in the assassination of the former Prime Minister of India, Mr. Rajiv Gandhi. She was one of the main accused persons and without her support the commission of the offence would not have been possible. The mere fact of her being a woman who delivered a child while in custody was not considered to be a ground for not awarding her death penalty.[28]

The victim was shot dead while leaving the court premises. Father and brother who accompanied the deceased became the natural witness. The accused were held liable to be convicted for murder. But death penalty was reduced to life imprisonment.[29]

In the landmark case of T.V. Vatheeswaran v. State of Tamil Nadu[30], a two judge Bench of Supreme Court considered whether the accused, convicted for an offence of murder and sentenced to death, kept in solitary confinement for about eight years was entitled to commutation of death sentence. It was held that delay exceeding two years in execution of a death sentence should be considered sufficient to entitle such person convicted to invoke Article 21 and demand the quashing of the death sentence.[31]

However, a three-judge bench in Sher Singh v. State of Punjab[32] held that though prolonged delay in the execution of death sentence is unquestionably an important consideration for determining whether the death sentence should be allowed to be executed, no hard and fast rule that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Art. 21 and demand the quashing of the sentence of death can be laid down as has been done in the case of Vatheeswaran.

In Javed Ahmed v. State of Maharashtra[33], re-iterated the proposition laid down in the case of Vatheeswaran and doubted the competence of the three-judge bench to overrule the Vatheeswaran case. The conflicting views were finally settled by the Constitutional Bench in Triveni Ben v. State of Gujarat[34]. It overruled the judgment in Vatheeswaran holding that undue long delay in execution of the death sentence will entitle the condemned person to approach the Supreme Court under Article 32 but the court will only examine the nature of delay caused and circumstances that ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to reopen the conclusions reached by the court while finally maintaining the death sentence. Court, however, may consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of the death sentence should be carried out or should be altered into imprisonment for life.[35]

The Principle Of Rarest Of Rare � A Critical Analysis
As per Justice A.S. Anand and N.P. Singh, the measure of punishment in any case must deepen upon the atrocity of the crime, the conduct of the criminal and the unprotected and defenceless state of the victim. The imposition of appropriate punishment is the manner in which the courts respond to the country's cry for justice against the criminals. Justice demands that courts should impose punishment benefitting the crime so that the courts reflect public adherence of the crime. However, it is said that capital punishment is vengeance rather than retribution and, as such, is a morally dubious concept. And the anticipatory suffering of the criminal, who may be kept on death row for many years, makes the punishment more severe than just depriving the life of the criminal.

Deterrence is most effective when the punishment happens soon after the crime. However, in a country like ours where cases take years to be decided and more so in cases of death penalty wherein there are many more procedural requirements and mercy petitions following the award of death sentence, the execution of sentence is prolonged further. Only recently the convicts in the Nirbahaya case were hanged to death after seven years of commission one of the most heinous crime possible, easily falling under the category of rarest of rare case. It seems more sensible wherein such a punishment is abrogated in totality instead of this useless trauma to the family of deceased as well as the accused and their family. Also, nobody knows whether the death penalty deters more than life imprisonment.

Capital punishment, of course, does not rehabilitate the prisoner and bring them back to the society. But there are several examples of people condemned to death taking the opportunity to repent, express remorse, and often experience spiritual rehabilitation before execution of death sentence. It is said that Amir Ajmal Kasab, the terrorist responsible for the 26/11 Taj attack in Mumbai, felt something similar days before his execution. Thomas Aquinas noted that by accepting death penalty, the offender was able to expiate his evil deeds and so escape punishment in next life

Another argument advanced in favour of death penalty is that it deters the offender from re-offending. However, sadly that cannot be said about judicial system in this country which to a great extent is motivated by political and other powerful influence. Such criminals who are likely to re-commit a crime or any other heinous crime mostly have powerful background backed by political and money power. They believe that nothing can touch them. That they are above the law. That they will never be held accountable.

Sadly, it is true to a great extent. The recent acquittals in highly politically motivated cases despite the gravity of the crime which could easily fall under the category of 'rarest of rare', prove so. Ultimately, in such cases of vague discretion, arbitrariness does creep in and judges ultimately are human beings. They have a future after retirement. They have families. They also fear such people. Hence, it would be absolutely correct to suggest that such political convictions are free from any bias and are just, fair and reasonable.

Another argument is that death penalty provides the family with a closure. This is the vaguest argument possible in support of death penalty and even vaguer in support of the principle of 'rarest of rare'. This invariably means that the emotions and grief of families of those victims wherein death penalty is awarded to convicts are more precious to the judiciary than those who aren't awarded the same.

In many countries, plea bargaining is used which is a process wherein a criminal receives a reduced sentence in exchange for providing assistance to the police. Where the possible sentence is death, the prisoner has the strongest possible incentive to try to reduce his sentence, even to life imprisonment without the possibility of parole, thus giving police a useful tool. This is a weak justification and similar to the arguments that torture is justified as it would be a useful tool for police and other such authorities.

The constitutional validity of death penalty in India was upheld in the landmark case of Bacchan Singh (Supra). This was the very case wherein the principle of rarest of rare was laid down by the Supreme Court of India. However, the scope of this phrase was left undefined. The ratio decidendi of Bacchan Singh case is that death sentence is constitutional only if it is imposed in rarest of rare cases and when the alternative option is excluded. Though in the case of Macchi Singh, the court tried to lay down a criterion for assessing whether a crime fell in the category of 'rarest of rare' case or not, the vagueness of these judgements leave the principle of awarding death penalty in India opaque and arbitrary.

In Prajeet Kumar Singh v. State of Bihar[36], the court ruled exactly on what would constitute a rarest of rare case. The court held that a death sentence would be awarded only, when a murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.[37]

A strong criticism arose from Justice Bhagwati who in his dissenting opinion cautioned saying, such a criterion would give rise to a greater amount of subjectivity in decision making and would make the decision whether a person shall live or die dependent on the composition of the Bench. He contends the fact that life of an offender is based on what a Bench deciding the particular case thinks, is clearly violative of the fundamental rights under Article 14 and 21 of the Indian Constitution.

The vagueness of awarding death penalty can be gathered from another example. In the case of Laxman Naik v. State of Orissa[38], the court ruled that a cold-blooded and brutal murder of a girl of very tender age after committing rape undoubtedly fell under the category of rarest of rare. But in Kumudi Lal v. State of Uttar Pradesh[39] which was also a case involving rape and murder of a fourteen-year girl, the court refused to confirm death penalty.

After the 2013 amendment to the offence of rape in India, the maximum punishment for the offence of rape has been enhanced to death penalty now.[40] However, the provision punishing the offence of rape in India runs collaterally with a presumptive provision under the Evidence Act.[41] Even after the 2013 amendment wherein the provision of Section 376E was inserted into the IPC, the presumptive provision under the Evidence Act remains as it is, without making any exception to the new provision.

Thus, what can be inferred is that on the basis of a presumption death penalty can be awarded now. This makes it even more vague and arbitrary.
An eye for an eye leaves the whole world blind, said Mahatma Gandhi. Retributive theory of punishment which is the basis of death penalty is against this principle of Mahatma Gandhi. Abolition of death penalty ay bring an end to the growing number of beastly crimes in India as it can be clearly seen that the presence of such a punishment is certainly not curbing them. Murders and rapes are not ending despite such a provision.

The cases of Unnao, Kathua and Delhi in 2017 are clear examples. Also deterrence which was one of the basis for this punishment cant be seen among like-minded criminals and crimes are still happening. The principle reason for it is the vagueness in which death penalty is awarded and hence doing away with it could possibly be the best solution to end this arbitrariness.

Rarest of rare is a principle that was brought in to make it easy for the judiciary to choose between death penalty and life imprisonment as a punishment for the offence of murder under Section 302.
However, with the severity of the growing crimes in country, the prescription of the penalty for other offences now, the arbitrariness involved and the absence of any checks and balances has made it a principle that has lost its soul and purpose.

Hence, it can be said that the best possible way to end this arbitrariness is to do away with the punishment of death penalty in totality.

  1. The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
  2. A.I.R. 1980 S.C. 898 (India).
  3. (1979) 3 S.C.R. 646 (India).
  4. 302. Punishment for murder- Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.
  5. 354. Language and contents of judgement- (3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.
  6. The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India).
  7. Supra Note 2.
  8. CJI Y.V. Chandrachud, J. P.N. Bhagwati, J. R.S. Sarkaria, J. A.C. Gupta and J. N.L. Untwalia.
  9. Supra Note 2
  10. Ibid.
  11. A.I.R. 1983 S.C. 625 (India).
  12. Sangeet v. State of Haryana, A.I.R. 2013 S.C. 447 (India).
  13. (1994) 4 S.C.C. 478 (India).
  14. Allaudin Mian v. State of Bihar, A.I.R. 1989 S.C. 1456 (India).
  15. Laxmi Raj Shetty v. State of Tamil Nadu, A.I.R. 1988 S.C. 1274 (India).
  16. Kehar Singh v. State (Delhi Admn.), A.I.R. 1988 S.C. 1883 (India).
  17. Jagdish v. State of M.P., 1992 Cr.L.J. 981 (India).
  18. III Addl. Sessions Judge, Guntur v. G.V. Rao, 1996 Cr.L.J. 703 (A.P.) (India).
  19. Lichhamadevi v. State of Rajasthan, (1988) 4 S.C.C. 456 (India).
  20. State of Rajasthan v. Yusuf, A.I.R. 2009 S.C. 2674 (India).
  21. The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India), s. 304B
  22. The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India), s. 498A.
  23. Vijay Kumar Arora v. State (Govt. of NCT of Delhi), (2010) 2 S.C.C. 353 (India).
  24. Molai v. State of Madhya Pradesh, A.I.R. 2000 S.C. 177 (India)
  25. Mohan Anna Chavan v. State of Maharashtra, (2008) 7 S.C.C. 561 (India).
  26. State of Uttar Pradesh v. Ram Sajivani, (2010) 1 S.C.C. 529 (India)
  27. Lokeman Shah v. State of West Bengal, 2001 Cr.L.J. 2196 (S.C.) (India).
  28. State of Tamil Nadu v. Nalini, A.I.R. 1999 S.C. 2640 (India).
  29. State of Uttar Pradesh v. Sikandar Ali, A.I.R. 1998 S.C. 1862 (India).
  30. A.I.R. 1983 S.C. 361 (India).
  31. K.P. Mohammed v. State of Kerala, (1985) 1 S.C.C. (Cri) 142 (India).
  32. A.I.R. 1983 S.C. 465 (India).
  33. A.I.R. 1985 S.C. 231 (India).
  34. A.I.R. 1989 S.C. 1335 (India).
  35. Ibid.
  36. Appeal (Crl.) 1621 of 2007 (SC).
  37. Ibid.
  38. (1994) 3 SCC 381.
  39. (1999) 4 SCC 108.
  40. The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India), s. 376E
  41. The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India), s. 114A
Written By: Syed Aatif - The author is a practicing advocate at the Central Administrative Tribunal (CAT), Delhi High Court and the Supreme Court of India.
Email: [email protected]

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