‘Rarest Of The Rare’ Doctrine In Awarding Death Penalty: A Critical Analysis

By Saptarshee Misra

Abstract

Death Penalty, based on deterrent theory of punishment, has always been a controversial subject. Though many famous philosophers, sociologists, and jurists are against capital punishment, India has retained it considering the disparity in the social upbringing, education, and morality of its vast population. However, there has been a tremendous shift over the years in the implementation of the death penalty. The Supreme Court, in a landmark judgment, restricted the application of capital punishment in the “rarest of the rare” cases². In this article, the researcher deals with the inception and evolution of this doctrine, its scope and restrictions, and the application of this dictum by the Indian judiciary.

“Guilt once established, the punitive dilemma begins.”

~ Late Justice V. Krishna Iyer¹

Introduction

There has been an endless debate in India about the moral, ethical, and legal issues relating to the death penalty. Capital Punishment or Death Penalty occupies a very special and contentious place in the criminal and penal jurisprudence of India because of its retributive and irrevocable nature. As of 2019, 142 nations have abolished capital punishment in law or practice.³ However, the Indian judiciary as well as the legislation has refrained from abolishing the death penalty because “the measure of the punishment must depend on the gravity of crime, so that the victim must be provided with fair justice.” ⁴

In words of famous philosopher Montesquieu, “The capital punishment represents a kind of retaliation, by which society withdraws protection from a citizen who has sought to destroy another citizen. A citizen deserves death, when he has violated the security of another and has gone too far as to kill him or attempted to kill him. The penalty thus employed may be described as the medicine for a social malady.” ⁵ Upholding this ideology, the Indian Penal Code⁶ provides provisions for awarding the death penalty for crimes committed under section 34, 109, 120B, 121, 132, 149, 194, 302, 305, 307, 364A, and 396 of the Code respectively. However, the Supreme Court of India has restricted death sentence to the “rarest of the rare cases” as was held in Bachan Singh v. State of Punjab.⁷

Constitutional Validity of Death Penalty

Jagmohan Singh v. State of Uttar Pradesh⁸ was one of the first cases to deal with the question of constitutional validity of death penalty. The counsel for the appellant raised the issue that section 302 of IPC violates articles 14, 19, and 21 of the Indian Constitution. The five-judge bench, by a unanimous verdict, rejected all the contentions of the appellant and held that the death penalty is constitutionally valid. The judgment stated that no law could deprive a citizen of his rights under article 19 of the Constitution unless it was reasonable and in the public interest. Since death penalty has not been declared as unreasonable by the legislature, the judiciary cannot consider it unreasonable without objective evidence. It further stated that each case differs from another in terms of facts and circumstances of the crime. A judge exercises his discretionary power after considering all the mitigating and aggravating factors related to the crime so it is unacceptable that the death sentence violates article 14 of the Constitution. Lastly, the trial takes place according to the provisions of law mentioned in the Indian Evidence Act, 1872, and the Criminal Procedure Code, 1973. The judge takes his decision according to the provisions of the law.

In Rajendra Prasad v. State of Uttar Pradesh⁹, it was held, “If the murderous operation of a diehard criminal jeopardizes social security in a persistent, planned and perilous fashion then his employment of fundamental rights may be rightly annihilated.” In Maneka Gandhi v. Union of India¹⁰, the Supreme Court held that the death penalty is an exceptional punishment that must be awarded only in extraordinary conditions and should be provided with special reasons.

The Supreme Court reiterated the same in Bachan Singh¹¹ by a four to one majority. However, there were some advancements made in the concept of the death penalty. The Court held that the death penalty must be awarded in the “gravest cases of extreme culpability”. Thus, the Supreme Court restricted the death penalty to the rarest of the rare cases, where the crime committed is unusual or unique and the question of life imprisonment is “unquestionably foreclosed.”

Scope and Restrictions of the Rarest of the Rare Doctrine

The rarest of the rare doctrine, introduced in the case of Bachan Singh v. State of Punjab¹² is based on Section 354(3) of the Criminal Procedure Code, 1973. It stated that “when the conviction 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.” The Supreme Court in Prajeet Kumar Singh v. State of Bihar¹³ held that rarest of the rare cases would include those circumstances “when a murder is committed in an extremely brutal, grotesque, revolting or dastardly manner as to involve intense and extreme indignation of the community.”

However, there is no specific definition of the rarest of the rare doctrine and no clear rules to understand which case falls under this category. In Machhi Singh & Ors. v. State of Punjab¹⁴, the Supreme Court gave some guidelines to decide whether a case is exceptional enough to shock the collective conscience of the community. The Court must look upon five factors before awarding the death penalty — the manner of commission of murder, the motive for commission of murder, anti-social or socially abhorrent nature of the crime, magnitude of crime, and personality of the murder victim.

Similarly, in Ramnaresh & Ors. v. State of Chattisgarh¹⁵, the Court referred to the judgments of Bachan Singh¹⁶ and Machhi Singh¹⁷ and gave a comprehensive guideline by providing thirteen aggravating circumstances and seven mitigating circumstances that the Court must consider while awarding the death sentence. Moreover, the judgment also provided five principles for the Courts to follow to determine the sentencing policy. The aggravating factors deal with the nature and commission of the crime, whereas the mitigating factors deal with the personality of the convict. The Court must decide a case on its own merits by rightly balancing the aggravating and the mitigating factors.

Inception of the Rarest of the Rare Doctrine

Section 367 (5) of the Criminal Procedure Code, 1898 stated, “If the accused is convicted of an offence punishable with death and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed.” The CrPC (Amendment) Act, 1955 has removed this provision and now, life imprisonment has become the rule, and the death penalty is an exception. This amendment has made it compulsory for the judges to provide special reasons for awarding capital punishment in exceptional circumstances.

Nathuram V. Godse v. Crown¹⁸ was the first incident of rarest of rare nature that happened in independent India. Nathuram Godse and his associates were accused of assassinating Mahatma Gandhi. The entire conspiracy to murder took place for six months before the assassination. The special Court of Delhi awarded the death penalty to the two main accused, which was confirmed by the Punjab High Court Bench. In Nawab Singh v. State of Uttar Pradesh¹⁹, the Supreme Court for the first time referred to extenuating and mitigating factors while awarding the death sentence. Similarly, in Vadivelu Thevar case²⁰, the Supreme Court stated that the Court must consider the extenuating or mitigating circumstances rather than the volume or character of evidence produced by the prosecution.

The Court in Jagmohan Singh case²¹ held that the focus must be on balancing all the aggravating and mitigating factors related to the crime only. However, in Rajendra Prasad case²², it was held that the Court must consider the factors related to the criminal and not to the crime. Then, in Santa Singh v. State of Punjab²³, the apex Court stated that the Courts must look into various factors related to the offence and the offender. Finally, in Bachan Singh²⁴, the Court used the term “rarest of the rare” and held that the death penalty must be awarded after considering the aggravating and mitigating factors related to the crime as well as the criminal.

Judicial Paradigms of Rarest of the Rare Doctrine

Manner of commission of murder

In the case of Asharfi Lal & Ors. v. State of Uttar Pradesh²⁵, the accused-appellants were two brothers, who were convicted of murdering their nieces to satisfy their grudges over a disputed agricultural property. The younger girl was struck with a gandasa and her neck was severed. The other one was struck on the head and neck with a banka and her right hand was chopped off with a gandasa. The Court held that this is a rarest of the rare case because of the extreme brutality with which the crime was committed.

Motive for commission of murder

In Henry Westmuller Roberts v. State of Assam²⁶, the accused had kidnapped a minor boy intending to extract ransom and later, killed the innocent child in cold blood. The Court awarded the death penalty to the appellant as the crime committed by him was of the rarest of the rare nature. He committed a heinous and a pre-planned crime.

Anti-social or socially abhorrent nature of the crime

In Sushil Murmu v. State of Jharkhand²⁷, the accused-appellant was convicted of sacrificing a nine-year-old child before Goddess Kali for his personal gain and prosperity. The Court held that the socially abhorrent nature of the crime must not be ignored because no superstition, belief, or notion can be a justification for committing a barbaric and deliberate crime.

Magnitude of crime

In the case of Munawar Harun Shah v. State of Maharashtra²⁸, famously known as “Joshi-Abhyankar Massacre Case”, Munawar Harun Shah and two others were convicted for committing ten murders along with robbery and dacoity. The Court held that this case falls under the rarest of the rare category because of the magnitude of the crime, the horrifying nature of the offence, and the spine-chilling manner in which it was committed.

Personality of victim of murder

In the case of Kehar Singh & Ors. v. State (Delhi Administration)²⁹, the three appellants were convicted for conspiracy and assassination of the Prime Minister of India, Smt. Indira Gandhi. The Court considered this case as one of the rarest of the rare instances as “the crime charged was not simply murder of a human being, but it was the crime of assassination of the duly elected Prime Minister of the country.”

Conclusion

The rarest of the rare doctrine has been a subject of endless unprecedented controversy because there are no proper guidelines to determine whether a case falls under this category or not. The need for change in the guidelines provided in Bachan Singh³⁰ and Macchi Singh³¹ was first held in Swami Shraddananda v. State of Karnataka³² because of the change in circumstances and conditions of life over the years. The same was also highlighted in the landmark judgment of Santosh Bariyar³³, where the Court held that this doctrine has been “variedly and inconsistently applied by the various High courts as also this court.”

Recently, in Shankar Kisanrao Khade³⁴, the Court stated that instead of balancing the mitigating and aggravating factors, the focus should be on crime test, criminal test, and rarest of the rare case test. Regarding the rarest of the rare case test, the Court held that it must be “society centric” rather than “judge centric”. The Court must consider various factors related to societal values and perceptions while conducting this particular test. The death penalty should be awarded only when the Court is satisfied with all the three tests.

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[1] Ediga Anamma v. State of Andhra Pradesh, AIR 1974 SC 799.

[2] Bachan Singh v. State of Punjab, AIR 1980 SC 898.

[3] Amnesty International Global Report: Death Sentences and Executions 2019, The United States Department of Justice (Aug. 12, 2020, 7:15 PM), https://www.justice.gov/file/1272316/download.

[4] Dhananjay Chatterjee Alias Dhana v. State of West Bengal, (1994) 2 SCC 220.

[5] XXIX (1) Nadagoudar & V. Suresh, India Bar Review 47 (Bar Council of India Trust 2002).

[6] The Indian Penal Code, 1860, § 53(3) (vi), №45, Acts of Parliament, 1860 (India).

[7] Supra note 2, at 1.

[8] Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947.

[9] Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 SC 916.

[10] Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[11] Supra note 2, at 1.

[12] Ibid.

[13] Prajeet Kumar Singh v. State of Bihar, (2008) 4 SCC 434.

[14] Machhi Singh & Ors. v. State of Punjab, AIR 1983 SC 957.

[15] Ramnaresh & Ors. v. State of Chattisgarh, (2012) 4 SCC 257.

[16] Supra note 2, at 1.

[17] Supra note 14.

[18] Nathuram V. Godse v. Crown, AIR 1949 East Punj 321.

[19] Nawab Singh v. State of Uttar Pradesh, AIR 1954 SC 278.

[20] Vadivelu Thevar v. State of Madras, AIR 1957 SC 614.

[21] Supra note 8, at 2.

[22] Supra note 9, at 3.

[23] Santa Singh v. State of Punjab, (1976) 4 SCC 190.

[24] Supra note 2, at 1.

[25] Asharfi Lal & Ors. v. State of Uttar Pradesh, (1987) 3 SCC 224.

[26] Henry Westmuller Roberts v. State of Assam, (1985) 3 SCC 291.

[27] Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338.

[28] Munawar Harun Shah v. State of Maharashtra, (1983) 3 SCC 354.

[29] Kehar Singh & Ors. v. State (Delhi Administration), (1988) 3 SCC 609.

[30] Supra note 2, at 1.

[31] Supra note 14, at 3.

[32] Swami Shraddananda v. State of Karnataka, AIR 2008 SC 3040.

[33] Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.

[34] Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546.

The author is a year II B.A. LL.B student of Department of Law, University of Calcutta. His submission secured a special mention in the Journal and Seminar Committee National Article Writing Competition 2020 organised in the month of August, 2020.

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