The Inception And Working Of The Rarest Of The Rare Doctrine
By Atreya Chakraborty
The title of this article makes it amply clear that its contents shall deal with the subject-matter of punishment; punishment in the form of death penalty in particular. Philip Smith in his book Punishment and Culture, had stated that ‘‘Punishment is a deeply meaningful activity that still needs to be interpreted if it is to be understood.’’¹ Thus, it would be improper and foolhardy for the author to make an attempt towards sufficiently interpreting death penalty by way of the brief discussion which is to follow, so as to enable the readers to form an all pervading understanding of the same. However, dealing with one of the facets, arguably the most important facet of death penalty seems reasonable. As such, the author, in the following paragraphs has made an endeavour to survey the inception and working of the Rarest of the Rare Doctrine.
Inception & Meaning Of The Doctrine
The first challenge against the constitutionality of death penalty was instituted in the matter of Jagmohan Singh v. State of U.P.² Grounds of challenge included concerns of arbitrariness in the imposition of death penalty. The Apex Court refused to accept the contention of arbitrariness and ruled that “…The impossibility of laying down standards is at the very core of the criminal law as administered in India, which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. That discretion in the matter of sentences as already pointed out, is liable to be corrected by superior courts… The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused.”³ A perusal of the afore-quoted excerpt of the judgment, shall inevitably lead one to agree with the Apex Court that it is impossible to frame express guidelines for the purpose of regulating the aspect of sentencing in cases involving death penalty. However, at the same time, it is also reasonable to state that the need for guidance in the form of judicial principles was recognised in Jagmohan Singh.⁴ Apart from adverting to the need for balancing of aggravating and mitigating circumstances of the crime, the Hon’ble Apex Court did not spell out any express doctrine or guideline that would have to be followed in deciding the extent of sentencing in case of crimes which are punishable by death. Subsequently, in the matter of Bachan Singh v. State of Punjab,⁵ the Supreme Court of India laid down the test of the Rarest of the Rare Doctrine (hereinafter referred to as “said Doctrine”). In the said matter, the Supreme Court had laid down that A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option (read ‘reformation’) is unquestionably foreclosed.⁶ Moreover, it was held that in applying the said Doctrine, which requires the forming of a balance sheet of aggravating and mitigating circumstances, the latter must be provided liberal and expansive construction by the courts, in consonance with the sentencing policy under Section 354(3) of the Code of Criminal Procedure, 1973.⁷ It is very important to bear in mind that the said Doctrine does not rest on the ascertainment of whether the crime in question is ‘rare’; it goes far beyond the same.⁸ Moreover the said Doctrine could, in fact, be said to have been inspired by the requirement of balancing of aggravating circumstances as spelt out in Jagmohan (supra).⁹ Here, it is important to note that the aggravating factors must be those which are appurtenant or related to the crime and the mitigating factors are those which are appurtenant to the circumstances of the accused.¹⁰ For summarisation and/or recapitulation of the task thrust upon the sentencing court by virtue of the said Doctrine, reliance could be placed upon the judgment delivered in the matter of Machchi Singh v. State of Punjab,¹¹ wherein it was held that:
“A balance-sheet of aggravating and mitigating circumstances have to be drawn up and in doing so, the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances before the option is exercised.”¹²
Balancing of the mitigating and aggravating circumstances is however not the entire sum of responsibility vested upon the sentencing court because after such balance has been struck, the court must proceed to determine as to whether any option other than imposing death penalty, is unquestionably foreclosed or in other words, there lies no scope of reformation of the convict.¹³
Since the afore-mentioned discussion helps in the formation of a brief yet wholesome understanding of the meaning of the said Doctrine, the author would now like to proceed to trace the working of the same.
Is There Any Inconsistency In The Balancing Of Aggravating And Mitigating Circumstances?
In the language of the Apex Court, there are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society.¹⁴ It is in fact, very difficult to disagree with the afore-quoted observation of the Hon’ble Supreme Court of India. However, there have been quite a few instances wherein dissimilar punishments have been imposed in similar cases. Such contention is substantiated by the observation of the Supreme Court in paragraph 52 of its judgment delivered in the matter of Swamy Shraddananda v. State of Karnataka.¹⁵ Therein, the Supreme Court had noted that, “…on the one hand there appears a small band of cases in which the murder convict is sent to the gallows on confirmation of his death penalty by this Court and on the other hand there is a much wider area of cases in which the offender committing murder of a similar or a far more revolting kind is spared his life due to lack of consistency by the Court in giving punishments or worse the offender is allowed to slip away unpunished on account of the deficiencies in the Criminal Justice System.”¹⁶ Since the afore-quoted excerpt considers the lack of inconsistency in the Criminal Justice System in general, it would not be foolish to argue that such inconsistency is present in the imposition of death penalty as well. Apart from placing reliance upon the afore-mentioned judgment only, it would be prudent to examine a few cases. Here, it is first and foremost important to consider the judgments delivered in the matters of Dhananjoy Chatterjee v. State of West Bengal¹⁷ and Rameshbhai Chandubhai Rathod (2) v. State of Gujarat¹⁸ (hereinafter referred to as ‘Case A’ and ‘Case B’ for the sake of convenience). In both cases, the accused were convicted of similar crimes. The age of the victim in Case A was eighteen years whereas in Case B, the victim was less than ten years old. In both cases, the convicts had no previous criminal record. In Case A, the age of the convict, who was sentenced to death, was 27 years¹⁹ at the time of commission of the crime and in case B, the age of the convict who was not sentenced to death, was 27–28 years.²⁰ Also, it could be argued that while age of the convict in Case B was, undoubtedly a mitigating factor, the age and extremely vulnerable nature of the victim in the same matter, could have been viewed as an aggravating circumstance appurtenant to the crime. Furthermore, the age of the convict in the Case B was looked upon as a mitigating factor unlike in Case A even though the age of convict in case A was similar to, if not more, than the age of the convict in Case B. Furthermore, from the concluding paragraph of the judgment delivered in Case A, it might appear that the fact that the convict had acted completely contrary to his duty as a watchman/security guard in causing the brutal death of the victim, was taken cognisance of by the Supreme Court and had been considered as an aggravating circumstance.²¹ However, the duty to protect, attributable to the convict in Case B and the treacherous contravention of such duty did not fall within the scope of consideration in deciding the amount of sentence. Thus, it could be argued that in two cases having very similar facts and circumstances, dissimilar conclusions were arrived at, by the Supreme Court in determining as to whether they fell under the bracket of said Doctrine.
Moving ahead, in view of Section 366 of the Code of Criminal Procedure,²² the importance of High Courts in the procedure of sentencing in case of crimes warranting death penalty cannot be ignored. As such, it may be prudent to refer to certain recent High Court judgments, albeit a few, due to the requirement of brevity.
In the matter of Anil Surendrasingh Yadav v. State of Gujarat,²³ the Gujarat High Court dismissed an appeal filed against the judgment of the Sessions Court wherein, the convict was awarded death penalty. In other words, the death penalty imposed by the Sessions Court was upheld by the High Court on appeal. The crime committed was similar to that in Cases A and B. Here, it is important to note that the victim was three and a half years old and the tender age of the victim was viewed as an aggravating circumstance of the crime. The Court held that the atrocious and diabolical nature of the crime committed left the Court with no option other than treating the case as “rarest of rare”. Almost in contrast the Patna High Court, in the matter of State of Bihar v. Hari Kishun Sad,²⁴ reduced death penalty awarded to a person convicted of a crime similar to the afore-mentioned cases, committed against a six-year old child. Here again, the young age and absence of prior criminal record were treated as mitigating circumstances attributable to the criminal. This again, is in contrast with the judgment delivered by the Supreme Court in Laxman Naik v. State of Orissa²⁵ wherein the Supreme Court had confirmed death penalty imposed upon a person guilty of committing a similar crime against a girl of seven years.
Even though it would not be proper to be unmindful of the fact that there are astrological imponderables in every case, one cannot ignore the inconsistent balancing of aggravating and mitigating circumstances and the resultant unpredictability of what may be considered to be “rarest of the rare”.
What May Be Regarded As Aggravating And Mitigating Circumstances?
While there may be many mitigating and aggravating circumstances attributable to a crime, the author would like to deliberate on a few of them in the following paragraphs.
In the matter of Bachan Singh (supra),²⁶ the Supreme Court had enlisted certain mitigating circumstances such as the offence being committed under the influence of intoxication, age of the criminal, the criminal’s belief that he was morally justified in his actions, etc.²⁷ While it may be difficult to refer to matters where the moral belief or intoxication of the criminal was looked upon as a mitigating factor, age of the victim has often been treated as a mitigating circumstance, albeit inconsistently.
Moving ahead, in the matter of Machchi Singh v. State of Punjab,²⁸ the Supreme Court had introduced “shock to the collective conscience of the society” as an aggravating factor.²⁹ Similar considerations such as “society’s cry for justice”,³⁰ “public abhorrence of crime”³¹ were added by subsequent judgments. Here, it is important to note that traditionally and principally (as enunciated in Bachan Singh) an aggravating circumstance must be objectively related to the crime committed. Thus, it could be argued that there might be some difficulty in accepting that “shock to the collective conscience of the society”³² or in simpler terms, public opinion is an objective factor appurtenant to the crime. More significantly, it must be mentioned that in Bachan Singh (supra) the Supreme Court had warned the judiciary against becoming oracles or spokesmen of public opinion.³³ Such opinion was echoed by the Law Commission of India in paragraph 5.2.19 of its 262nd Report.³⁴ Moreover, it may also be stated that crimes especially such as that of murder, under usual circumstances, will always cause the society or the parts affected thereof to “cry for justice” unless the State in general and the society in particular gets reduced to a dystopia.
Furthermore, brutality of the crime has often been treated as an aggravating factor. For the sake of convenience, if one refers, once again to the previously discussed cases, it shall become clear that what, one person may be regard as being brutal to the extent of warranting death penalty, it may not be so regarded by another person. Thus, brutality too, as an aggravating circumstance does little towards instituting an objective and uniform mechanism in the imposition of death penalty.
Thus, it could be said that while there may be some consensus on what factors may be treated as aggravating and mitigating circumstances, such factors are sometimes not objective in nature and on other occasions are not uniformly applied. As a result, the ascertainment of whether a crime falls under the category of “rarest of rare” is also subject to the vice of unpredictability. The Hon’ble Supreme Court has itself acknowledged such subjectivity in many cases such as Aloke Nath Dutta v. State of West Bengal,³⁵ Swamy Shraddhananda v. State of Karnataka,³⁶ Santosh Bariyar v. State of Maharashtra,³⁷ Mohd. Farooq Abdul Gafur v. State of Maharashtra³⁸ and so on.
Conclusion
Undoubtedly, the judgment delivered in Bachan Singh (supra)³⁹ constituted a landmark in the criminal law jurisprudence of this country. The noble purpose of the guidelines laid down in the said matter cannot be disregarded under any circumstance. Irrespective, a fear persists that these guidelines have not been applied objectively or have been modified to such a degree that the said Doctrine and its related guidelines have been effectively replaced by numerous new considerations. Furthermore, determination of aggravating and mitigating circumstances is undoubtedly subjective and judge-centric. As a result, the working of the “rarest of the rare” doctrine is fraught with inconsistencies and subjectivity. Perhaps, a detailed study of all death penalty cases and appeals should be conducted by the Law Commission of India so as to identify a definite and comprehensive set of aggravating and mitigating circumstances; and strict adherence to the same without leading to outright absurdity should be observed so as to minimise instances of incongruities between judgments of different courts. In the end, the author would once again re-iterate that the said Doctrine is perhaps the best possible safeguard against arbitrary imposition of death penalty but at the same time, strict adherence to the same and a retreat from unnecessary modifications or expansion of the ambit of the said Doctrine, is the need of the hour for preserving uniformity in sentencing procedures.
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[1] Philip Smith, Punishment And Culture 187 (The University of Chicago Press 2008).
[2] (1973) 1 SCC 20.
[3] Ibid at ¶ 26.
[4] Supra note 2.
[5] (1980) 2 SCC 684.
[6] Ibid at ¶ 209.
[7] Ibid.
[8] Matters Of Judgment: A Judges’ Opinion Study On The Death Penalty And Criminal Justice System 53 (National Law University, Delhi Press 2017).
[9] (1973) 1 SCC 20.
[10] Matters Of Judgment, supra note 8.
[11] (1983) 3 SCC 470.
[12] Ibid.
[13] Supra note 6.
[14] (1980) 2 SCC 684, at ¶ 209.
[15] (2008) 13 SCC 767.
[16] Ibid at ¶ 45.
[17] (1994) 2 SCC 220.
[18] (2011) 2 SCC 764.
[19] Supra note 17 at ¶ 12.
[20] Supra note 18 at ¶ 9.
[21] Supra note 17 at ¶ 16.
[22] Code of Criminal Procedure, 1973, § 366, №2, Acts of Parliament, 1974 (India).
[23] 2019 SCC OnLine Guj 2692.
[24] 2018 SCC OnLine Pat 1988.
[25] (1994) 3 SCC 381.
[26] (1980) 2 SCC 684.
[27] Ibid at ¶ 206.
[28] (1983) 3 SCC 470.
[29] Ibid at ¶ 32.
[30] Jameel v. State of U.P., (2010) 12 SCC 532.
[31] State of M.P. v. Basodi, (2009) 12 SCC 318.
[32] Supra note 29.
[33] Supra note 26 at ¶ 126.
[34] Law Commission of India, 262nd Report, 2015, at ¶ 5.2.19.
[35] (2007) 12 SCC 230.
[36] (2008) 13 SCC 767.
[37] (2009) 6 SCC 498.
[38] (2010) 14 SCC 641.
[39] (1980) 2 SCC 684.
The author is a year III B.A. LL.B (Hons.) student of Department of Law, University of Calcutta. His submission secured the 1st position in the Journal and Seminar Committee National Article Writing Competition 2020 organised in the month of August, 2020.
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