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The Doctrine of Rarest of The Rare

While there is baffling subjectivity in imposition of capital punishment in India, globally, 104 countries have completely abolished death penalty whereas 29 others have abolished it de-facto (meaning no execution of any person has been carried out in the last 10 years). [1] Indian laws do not hold a steady perspective of capital punishment but neither do they dissuade it completely. Death Penalty in India has been restricted to the “rarest of rare” cases, yet, there are still various statutes that prescribe capital punishment despite the offences not being serious enough. Section 121 (waging war against the state), section 302 (murder), section 364A (kidnapping with ransom), etc. of the Indian Penal Code 1860 and other provisions like The Commission of Sati (Prevention) Act 1987, Prevention of Terrorism Act 2002, etc. prescribe offences punishable with capital punishment. The most common cases involving major death row convicts are terrorism and rape-cum murder cases.[2]

The Doctrine of Rarest of Rare was established in the case of Bacchan v. State of Punjab[3]. The Supreme Court, in this case, endeavoured to cut out a doctrine particularly for offences culpable with death to decrease the ambiguity for courts regarding when to go for the highest punishment of the land. By the majority of 4 to 1, the constitutionality of death penalty was upheld by the Supreme Court and a principle was laid down that death penalty must be surrounded only in the “rarest of rare cases.” However, the scope of this phrase was left undefined. The Ratio Decidendi of Bacchan Singh case is that the death sentence is constitutional if it is prescribed as an alternative for the offence of murder and if the normal sentence prescribed by law for murder is imprisonment for life. This means that death penalty can only be imposed on “rarest of rare cases” where an alternative option is excluded.

Later, in the case of Macchi Singh v. State of Punjab[4], the court tried to lay down criteria for assessing whether a crime fell into the category of “rarest of rare.” In the case of Santosh Kumar Bariyar v. State of Maharashtra[5], the Supreme Court ruled that, “The rarest of rare dictum serves as a guideline in enforcing Section 354(3) and establishes the policy that life imprisonment is the rule and death punishment is an exception.” Section 303 of the Indian Penal Code mandated death penalty for all offenders serving a life sentence. This section was struck down as being held unconstitutional. The year 2008 accounted for the case of Prajeet Kumar Singh v. State of Bihar[6], wherein 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.[7]”

Research Questions
· What is the ‘Test of Rarest of Rare’ case?
· What is the scope of ‘Rarest of Rare’ case?
· Whether the Doctrine of ‘Rarest of Rare’ should be abolished in India?

What is a Rarest of Rare case?
In the Macchi Singh case[8], the court laid down certain criteria for assessing when a case could fall under the ambit of rarest of rare. The criteria are analysed as below:
1. Manner of commission of murder – When the murder is committed in an extremely brutal, ridiculous, diabolical, revolting, or reprehensible manner so as to awaken intense and extreme indignation of the community; for instance,
a. When the victim’s house is set on fire with the intention to bake him alive.
b. When the victim is tortured to inhuman acts in order to bring about his/her death.
c. When the body of the victim is mutilated or cut in pieces in a brutal manner.

2. Motive for the commission of murder – When total depravity and cruelty are the motives behind a murder; for instance,
a. A hired killer committing murder merely for the sake of a monetary reward.
b. A cold-blooded murder incorporating a thoughtful design in order to get control to inherit property or for any other selfish gains.

3. Socially abhorrent nature of the crime – When a murder of a person belonging to one of the backward classes is committed. Cases of bride burning, famously known as dowry deaths, are also covered in this.

4. Magnitude of the crime – When the proportion of the crime is massive, for instance, in cases of multiple murders.

5. Personality of victim of murder – When the murder victim is an innocent child, a helpless woman or person (due to old age or infirmity), a public figure, etc.

In applying the abovementioned guidelines, the following questions may be asked and answered accordingly:
a. Is there something which is very unusual about the crime that renders sentence of life imprisonment insufficient and needs a replacement with sentence of death?

b. Are the conditions of the case such that there is no alternative but to impose death penalty even after giving full weightage to mitigating circumstances that speak in favour of the offender?

What is the scope of the Doctrine of Rarest of Rare?
In the case of Jagmohan Singh v. State of U.P[9], the Supreme Court upheld the constitutionality of capital punishment giving reasons that it is not merely a deterrent but a token of disapproval of crime on part of the society. The Court also felt that Indian could not risk experimenting with abolishing capital punishment.

The constitutionality was again upheld in the case of Bacchan Singh. Thus, from the case of Bacchan Singh[10], the following propositions were emerged:

i. The extreme step of imposing death penalty need not be imposed except in cases of extreme culpability.

ii. Before opting out for capital punishment, the circumstances of the offender must need to accounted for. (Aggravating and Mitigating circumstances)

iii. Life imprisonment is rule and death sentence is an exception. In other words, death sentence should only be imposed in cases where life imprisonment proves to be altogether insufficient punishment giving regard to accurate conditions of the crime.

iv. A balance sheet of all aggravating and mitigating circumstances needs to be drawn up and full weightage must be given to mitigating circumstances just so that a balance between both can be struck.

The cases wherein there was an involvement of an uncommon crime which is unusual to any prudent person, or any person of the society with a reasonable mind, as well as a lack of alternative punishment being sufficient for the crime, is equal to what the Court later coined as the “Rarest of Rare” situation. The court further elaborated the scope of rarest of rare by mentioning five criteria within which the case of rarest of rare was applied.[11]

The Application of Test of Rarest of Rare
The formulation of rarest of rare, just like any other subject, is not free from criticism by others. Many opponents have pointed out a view of this doctrine being very ambiguous and subject to various interpretations. A solid criticism arose from Justice Bhagwati himself 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 the life of an offender is based on the minds of bench is clearly violative of the Fundamental Rights enshrined in Article 14 and 21 of the Indian Constitution.

It has also been argued that the decisions given in relation to this doctrine are given arbitrarily. For instance, when a person, suspecting the fidelity of his wife severed her head and killed her, the Supreme Court had no doubt in categorizing it as a rarest of rare case and imposing death.[12] The decision in Amruta v. State of Maharashtra becomes relevant here, as a case where the court refused to give death even when it involved similar facts as the case above mentioned.

The court ruled that a calculated, cold-blooded and brutal murder of a girl of very tender age after committing rape on her undoubtedly fell in the category of rarest of rare.[13] But in Kumudi Lai v. State of U.P[14], “which is also a case involving rape and murder of a fourteen-year-old girl, the court refused to confirm death sentence. In Amrit Singh v. State of Punjab[15] , a girl of 2nd standard was brutally raped. She died subsequently due to excessive bleeding. Both the trial and High court convicted the accused under section 302 and sentenced him to death. But the Supreme Court held that the death was not intentional though the rape was brutal.

The two constitution benches in the case of Jagmohan and Bacchan Singh refused to form a standardised categorisation of cases where the doctrine of rarest of rare could be applied despite keen pleas from the appearing counsels to do so. In Jagmohan, the Court stated that laying down standards would not serve any purpose rather judicial discretion shall be exercised to ensure safest possible safeguard for involved parties.

The strongest criticisms were found in the dissenting opinions of Bhagwati. J. He raised a crucial point that describing a crime as “gruesome”, “cold-blooded”, “brutal”, etc. are not clear-cut categories and are not uniform to all judges. Thus, factors that a considered relevant to one judge may not be concerned relevant to others.

The Centre on the Death Penalty at NLU released a report[16] featuring an opinion study with 60 former Supreme Court judges on the criminal justice system and the death penalty in India. "For a significant number of judges, the rarest of the rare was based on categories or description of offences alone and had little to do with judicial test requiring that the alternative of life imprisonment be 'unquestionably foreclosed'," the report said. The comprehensive report was released after consulting 60 former judges who had adjudicated 208 death penalty cases between them at different points during the period 1975-2016. "Despite rarest of rare doctrine in death penalty as laid down by the Supreme Court in the Bacchan Singh case, the report shows that there existed no uniform understanding of the requirements of rarest of rare doctrine," senior advocate Rebecca John said during the panel discussion after the release of the report.[17]

Should the Doctrine of Rarest of Rare be abolished in India?
Since there is no statutory definition of what Rarest of Rare means, the controversy arises each time when the Court awards death penalty. There are cases where the accused has committed rape as well as murder and has been given death penalty; however, there are other cases with similar facts and scenarios but the accused has not been granted death penalty. It is very difficult to find the variation that has led to a difference in these punishments – is it the crime? Or the criminal? Or the Judge?

In the author’s opinion, completely removing the concept of death penalty shall put the country to a greater risk. India has not yet become a country sufficient to experiment such extreme conditions. The doctrine was supposed to be society-centric but it has, rather, become judge-centric. If the Judiciary wants to keep this doctrine, they need to ascertain specific elements on the basis of which the fog gets cleared.

Conclusion and Recommendations
The author humbly submits the following recommendations in order to regulate and mitigate the debates revolving around the Doctrine of Rarest of Rare:
1. Standardised guidelines should be laid down:
A uniform guideline ought to be laid down that encompasses grounds under which cases can be identified as rarest of rare. This can help to clear the fog that has been formed which has led to confusion in the mind of various jurists.

2. The decision must be taken with due care and reasonableness:
While awarding the punishment of death penalty, it must be kept in mind that, although, the accused has committed a brutal act, if there is any chance that proves that the accused shall not inflict further harm to the society, on this ground, he/she must not be given capital punishment.

3. Death penalty should not be delayed after its pronouncement:
In Triveni Bai v. State of Gujarat[18], the Supreme Court held that the execution process must be delayed on reasonable grounds, so that the accused may get fair trial. However, it is suggested that there should not be any delay after the pronouncement of death penalty. This does not mean that the accused should not be given the right to appeal but it should be open only for a specific period.

4. Death penalty must not be rendered in haste:
The constitutional bench before awarding capital punishment should accurately analyse every aspect of the case and ensure that it is not rendered merely in haste.

5. The punishment should be reasonable in comparison with the act:
The execution of death penalty must be in accordance of the gravity of the act committed. Capital punishments should not be rendered in cases of petty offences. It must be in relation to the gravity of the act which helps to induce fear amongst potential criminals so that it acts as a deterrence and avoids them from committing such a heinous crime.

[1] Amnesty International Global Report on Death Sentences and Executions 2015. Index: ACT 50/3487/2016
[2] Lethal Lottery: The Death Penalty in India, PUCL and Amnesty International.
[3] (1980) 2 SCC 684
[4] AIR 1983 SC 1957
[5] (2009) 6 SCC 498
[6] Appeal (crl.) 1621 of 2007
[7] Prajeet Kumar Singh v. State of Bihar
[8] Supra see note 4
[9] AIR 1973 SC 947
[10] Supra see note 3
[11] This is drawn up in the case of Macchi Singh v. State of Punjab
[12] Bhaeru Singh v. State of Rajasthan, (1994) 2 SCC 407
[13] Laxman Naikv. State of Orissa, (1994) 3 SCC 381
[14] (1999) 4 SCC 108
[15] (2007) 1 SCC (Cri) 41
[16] The report was released on 8th December 2017
[17] “No uniformity on rarest of rare doctrine in awarding death” See at:
[18] (1983) 2 SCC 68

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