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By Spandana Reddy Bommu and  Beerelly Sai Vivek Rao


Once upon a time in Indian history, the Hon'ble Apex Court of India pronounced the doctrine of "rarest of rare", and since then, the Indian legal system has taken the stance that "The life sentence is the rule, and the death penalty is an exception". But the lawmakers, i.e., legislation, are not concerned with this opinion because they haven't made or passed any such law about the rarest of rare principles at present; it is all about the circumstances and facts of the case and the judge passing the judgement. Considering if an offence falls under the limitation of "rarest of rare" is all about motive, intention, planning, and execution of the crime and how society considers this.

The honourable Supreme Court in the case "Bachan Singh v. State of Punjab" held that "The death penalty should be imposed when the collective conscience of the society is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty". But here, a question arises whether the lower courts follow the doctrine of the rarest of rare principles. And if yes, why these death penalties are being awarded? Before awarding the death penalty, the court must observe certain things such as the Intention for the commission of a crime, the Approach to the commission of a crime, the nature of the crime, and the victims' personality as well as magnitude. Apart from all these, courts also need to consider their chance of rehabilitation before awarding someone the death penalty. The researchers in the present research elucidate the evolution of the death penalty and, in addition, enumerate if the punishment of the death penalty is constitutionally valid. Consequently, the authors dwell on the provisions that led to the necessity of this doctrine in India and also suggest the measures the legislation can look into that would be desirable for the existing society.

 Keywords: Constitution, Crime, Death penalty, Intention, Judicial power, Legal system.

I. Introduction

The Doctrine "Rarest of Rare" doesn't have a strait jacket formula to execute it in a specific scenario. In a criminal case, the complete trial is based on two essential elements: "The nature and the gravity of the Crime". Based on these two elements, the extent of the punishment can be decided. In India, the Judiciary is committed to its position as a watchdog of democracy. It has all the powers to decide the punishment if a person is found guilty, but at the same time, the court will decide on the death penalty only when no other option is left. The Indian law does not have a consistent stand on the death penalty, nor do they openly forbid it. In India, capital punishment has been reserved for the most serious of offences, such as "Section 121 (taking up arms against the state)[1], Section 302 (murder), Section 364A (kidnapping for ransom)[2], and so on of the Indian Penal Code 1860"[3]. The most well-known examples include fear-based oppression and assault murder, with a significant number of prisoners on death row.

In the case of "Bacchan Singh v State of Punjab"[4] the doctrine of "rarest of rare" has been established by the Indian judiciary, i.e., the apex court has stated its viewpoint on capital punishment and enumerated the principle would be restricted to only the "rarest of rare" cases. The Supreme Court fully supported decreasing the use of capital punishment to punish offenders. However, the opined by the apex court opposes the legislation as the legislation can increase the number of members awarded the death penalty. Further, in that case, the bench held that "….in settling the level of discipline or settling on the decision of sentence for different offences, including one under Section 302 of Penal Code, the court ought not to bind its thought chiefly or just to the circumstances associated with the specific wrongdoing, additionally give due attention to the circumstances of the criminal."[5]

An essential fundamental right of every person is "No person shall be deprived of Right to life unless done following due process of law"[6], but the death sentence restricts the due process of law. Once the death penalty has been awarded, it is irrevocable until new evidence or laws exist. The Supreme Court considered all factors relevant to crime and perpetrators in 1982. Again, in 1983 Supreme Court changed its view and said that the "rarest of rare that court should consider is a crime and not the criminal".[7] Later, in the case of "Mohd. Chaman vs State (N.C.T.Of Delhi)",[8] the accused raped and killed a one-and-a-half-year-old girl and was sentenced to life in prison. There will also be differences from case to case, judge to judge and bench to bench. One critical tenet of our judicial system is that many criminal individuals should walk free rather than for one innocent person to suffer.


2. Evolution and History of the Doctrine

The death sentence has been practised in India since time immemorial, although the techniques employed for carrying it out have changed over the years. A trial court adopts the "Rarest of the Rare" doctrine to levy capital punishment on a criminal offender. The Rarest of Rare doctrine's reach is still undetermined; however, the concept has developed over decades of legal interpretations. Capital punishment is enforced at the discretion of the justices. To justify the death penalty, the facts surrounding the case must be such that the judicial bench is left with no alternative but to impose the death sentence to restore society's law and order. When evaluating a trial that necessitates the death penalty for the crime perpetrated, the Panel must accentuate the cruelty and atrocities of the offence, the magnitude of the violence sufficient to warrant public condemnation, and it must respond to society's demand for justice against the criminal.

After examining a specific occurrence's information and conditions, a death sentence is imposed. A judge cannot deliver capital punishment during a trial for an offence that carries the death penalty under the "rarest of rare" criterion when any elements underlying the crime are extenuating in scope. A court should impose the death penalty at his or her option solely if the evidence shows aggravating conditions under which the offender committed the offence. As a result, when choosing the death sentence, it ought to be thoroughly and meticulously studied if the death sentence is appropriate to the seriousness of the offence and has a deterrent negative consequence on the social system.

2.1 Evolution of the doctrine

The "Rarest of the Rare" notion has been incorporated in the case of "Bachan Singh v. State of Punjab". Under this judgment, the Apex Court, by a 4:1 verdict, introduced the 'Rarest of the Rare doctrine' by narrowing the capital punishment practice. The supreme court justices drew on the decisions of "Jagmohan Singh v State of Uttar Pradesh[9]" and "Rajendra Prasad v State of Uttar Pradesh"[10], which held that if an individual is sentenced to death, his fundamental right to life stands violated. Nevertheless, when a perpetrator's activities jeopardise societal stability in a persistent, intended, and risky manner, his enjoyment of constitutional freedoms may be rightfully terminated. The following concepts have been established in the case:

The Highest Court ruled that perhaps the death sentence is not unconstitutional and must be administered solely in the most heinous cases if an alternate punishment is not attainable. Nevertheless, the expression "Rarest of the Rare" remained ambiguous, and the theory has developed over time through judicial precedent.

 In "Mithu Singh v. State of Punjab"[11], the Apex Court considered that the death sentence isn't mandated by law and ought to be used only when the bench was confronted with a scenario entailing the "rarest of the rare" instances wherein capital punishment was compelled to reinstate societal conscience. The court reiterated that life imprisonment is the norm, and that the death sentence is an exceptional case.

In the case of "Machhi Singh & Ors. v. State of Punjab", the principle of "Rarest of Rare" was again called into question. It was a pivotal decision as the Supreme Court established rules for imposing capital punishment under the "Rarest of Rare" doctrine. The court stated that a death sentence might well be allowed to pass in the rarest of rare circumstances when society's sense of justice has astounded that it expects the trustees of the judicial branch to impose a sentence of death regardless of their individual views on the merits or otherwise of trying to retain the death penalty. The Jury stated that to pass a death sentence; the following considerations must be assumed:

Ø  The way the murder was committed;

Ø  The murder's motive; and

Ø  The anti-social or socially repulsive aspect of the offence;

Ø   The scale of criminality;

Ø   Characteristics of the Murderer.

The Court ruled that the principles outlined in Bachan Singh's case13 must be filtered out and implemented in the details of every single matter where the issue of imposing death penalties crops up. 

The Apex Court reiterated the "Rarest of Rare" approach in "Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra"[12], holding that suitable punishment must be evaluated on a case-by-case scenario. The death penalty shall only be considered in the "rarest of rare" scenarios whereby restoration is not conceivable. The Court further stated that judgments are not consistent in the "rarest of rare circumstances." In most instances, the Court of Law has either upheld or declined to approve the death penalty without establishing any legislative norm.

3. Statutory Validity of the Doctrine

In India, the term "Rarest of Rare Cases" is frequently used in murder cases and several anti-terrorist statutes, including the Prevention of Terrorism Act, 2002 and the Terrorist and Disruptive Activities (Prevention) Act[13]. The significant sections of the Indian Penal Code, 1860, under which the accused of the crime may be condemned to death, are Section 302 for murder, Section 120-B for criminal conspiracy, Section 305 for aiding suicide, and so on. Understanding what the Indian Constitution and some court decisions have to say in this regard is vital for us.

The case, "Jagmohan Singh v. State of UP", was the first time in India's history that the constitutional validity of "the Doctrine of Rarest of the Rare Cases" and the death penalty was contested. The petitioner argued that Section 302 of the IPC, which allows for the possibility of the death penalty for murder, violates Articles 14 and 19 of the Indian Constitution, which are about equality before the law and freedom of life, respectively. If the death penalty was carried out in conformity with the law, it was found to be entirely lawful and constitutional. The murder suspect may be put to death if it seems fair and is generally in the public interest. The death sentence may be carried out if the trial was conducted following the processes established in the Criminal Procedure Code, 1973, and the verdict was supported and accepted by the law and the court.

It is safe to conclude from those mentioned above that a judge may impose the death penalty if it is just and reasonable. In addition to statutory interpretations of the law, the Court always acts under notions of justice, so protecting the public interest and acting to advance justice is more crucial for a Court than offering a limited interpretation of any legal provision and depriving the aggrieved of his legitimate right to justice.

In the case " T.V. Vatheeswaran v. State of Tamil Nadu[14]", the Hon'ble Court ruled that a death convict may have his death sentence reduced to life in prison if there is an excessive delay of more than two years in carrying out the death sentence. Furthermore, in the case of "Sher Singh v. State of Punjab"[15], the ruling mentioned above was reversed.

It was argued that the Supreme Court, in "Maneka Gandhi v Union of India[16]", gave a different interpretative measurement to Articles 14, 19, and 21 and their interrelationship in each reformatory confinement law, both in its procedural and significant viewpoints and that the assessment of all three articles must breeze through the assessment of all three articles. The court rejected the argument in this instance. It was determined that, unlike Articles 19 and 21, it does not control the right to life and individual liberty and is, therefore, insufficient for determining the legitimacy of Section 302 IPC arrangements. Regarding Article 21, it was concluded that the article's authors recognised that it was within the State's authority to deny a person's life or freedom following the law. Furthermore, there is evidence throughout the Indian Constitution that the writers were aware of the presence of the death sentence.

4. Analysis of the Doctrine w.r.t Nirbhaya Case

The Nirbhaya Rape Case was among the most violent rapes in sexual violence history. It jolted the consciences of people from all walks of life. The Act was so heinous that Justice Dipak Mishra noted in his decision saying, "We appear to be existing in a primitive and uncivilised culture". The tragedy occurred on December 16, 2012. Later, enormous demonstrations, press attention, and political interference resulted in numerous amendments to the law. The four convicted were hanged on March 20, 2020. The incident was so heinous that it was high time to reexamine cases of sexual assault on children and women. In this context, the researchers examine the rarest of the rare principles by which the criminals were executed.

Facts of the Case: On 16th December 2012, the four accused, Vinay Sharma, Akshay Thakur, a Juvenile Offender, Ram Singh (later committed suicide), his brother Mukesh Kumar and Pawan Gupta, were driving a bus in Delhi. They offered the victim and her companion a trip. The victim was raped in the minibus while travelling around Delhi at midnight. A medical examination revealed that foreign objects were shoved into the victim's intimate areas, resulting in significant internal bleeding. Shortly following the heinous act, the prisoners attempted to run the vehicle over the unfortunate victim and her friend but were unsuccessful.

Imposition of Death Sentences in the Present Case: Frack Track Courts underpinned the death penalty, and in addition, the Delhi High Court upheld the verdict when it was referred to the Court. Nevertheless, the convicts in the case knocked on the doors of the Supreme Court, and after adequate hearing and examination, the six-judge bench confirmed the death sentence. In this matter, the following facts were considered-

Ø  Upon medical examination, severe bite marks were present on the victim's private parts of her body.

Ø  Sharp elements were shoved in such a heinous way that the victim's intestine ruptured.

Ø  Following the gang rape, the convicts threw the victim and her friend out of the running bus and were found to be in an unfortunate situation.

Ø  In addition, the perpetrators tried to run over the bus on the victim and her friend
  to escape the place.

The Apex Court considered the facts mentioned earlier and reiterated that gang rape falls under the aggravating nature of the offence. Furthermore, the court observed there isn't a balance between the mitigating and aggravating factors. Dipak Mishra, the then Chief Justice, expressed that the offence was executed, showing a clear act of savagery. Subsequently, the judicial bench upheld the death sentence for the convicts as the commission of this act falls under the principle "rarest of the rare" as it only disturbed the conscience of the society but also questioned the safety laws available for a child and women in this country.

4.1 Post-death Sentence Procedure/Rights available for the convicts post-conviction

In this instance, the Highest Court's competency remedies were pursued. These encompass the remedy of review, mercy, and curative petition. Additional remedies, such as remission and commutation, are obtainable, but they were not employed in this matter.

a)     Review Petition: Article 137 Section 145 of the Constitution of India and the Supreme Court Rules of 2013 enumerates the review petition. The same court bench revisits the Supreme Court's final ruling under this procedure. This petition should be filed within 30 days from the date of the decision. The review's goal is to correct problems that appear on the surface. Its purpose is to correct a severe miscarriage of justice.

Three separate Review Petitions, "A.K. Singh v. NCT Delhi[17]Mukesh v. NCT of Delhi[18]; Vinay Sharma v. NCT of Delhi",[19] were filed by the convicts seeking their last remedy in the court of law. On this basis, claims were made, such as the accused having a sickness, the accused not residing in Delhi, the accused being the sole breadwinner in the family, and so on. The Supreme Court bench mentioned that the arguments had been correctly examined in the Supreme Court appeal and the High Court's reference petition. Consequently, the review in the present instance was struck down.


b)     Curative Petition: A curative petition tries to redress a severe miscarriage of justice and abuse of procedure. It is entirely curative; thus, the court cannot disregard a party's rights while exercising its authority. The court derived this idea from Article 142 of the Constitution's Inherent powers. Rupa Ashok Hurra v. Ashok Hurra[20] was the case where the idea originated.

In the present case, the perpetrators filed the three curative petitions on separate dates in this matter. The bench observed that the grounds laid by the convicts didn't satisfy the conditions mentioned under the Rupa Ashok Hurra case. Hence, their curative was rejected.


c)     Mercy Petition: Article 72 and 161 of the Indian Constitution authorises the President and Governor to grant mercy petition. It is the last remedy for death row convicts after all the other remedies have been rejected. The primary objective is to show that despite admitting to committing the heinous crime, the accused shall be granted "Mercy" or "Daya" for various reasons. It can be interpreted as just an act of grace enumerated by the Constitution of India. The objective is that, whilst court rulings could be constitutionally valid, nevertheless may be unfair to the convicted. Consequently, he might seek Mercy from the executive, namely the President and Governor.                                                         

In the current case, Ram Nath Kovind, the then President, opined in an interview that rape convicts should not be granted Mercy under the Protection of Children Against Sexual Offences (POCSO). Consequently, all mercy requests were denied in this instance. Later, Writ Petitions were filed to challenge the rejection of the Mercy Petitions. However, this was also denied, and the perpetrators were hanged to death on March 20, 2020.


5. The Numerous Scenarios that led to the necessity of the doctrine in India

Till 1973 in the Indian Legal System, In the case of a capital offence, the judge must justify his or her reasons for not imposing the death penalty and instead adopting the alternative punishment of life imprisonment. But in the case of "Jag Mohan Singh v State of U.P," the Apex Court upheld the legality of the death penalty, understanding that it was not just an obstruction but also a symbol of force. In this case, the Court considered that India could not afford to experiment with the death sentence being abolished and that appeals could address any flaws in sentencing to higher courts. However, the Court set criteria under which, while sentencing, the death sentence was the rare exception rather than the rule. The case's facts required it to defend state security, public interest, or public order.

Following that, according to new amendments in the Indian legal system, a pre-sentence hearing is a right given to the accused. The court must establish specific reasons for giving the death penalty rather than a life sentence. The death penalty was commuted to life in the "Priyadarshini Mattoo"[21] case, reflecting the Supreme Court's recent concern over the mere ambiguity of its own "rarest of rare" doctrine. Although death sentences are being handed down in several murder cases, ostensibly in response to "society's cry for justice," the Supreme Court has issued a series of rulings admitting that the administration of the "rarest of rare" doctrine is riddled with "chaos," "subjectivity," and "arbitrariness." Under this doctrine, the court might use the death penalty only in the most extreme circumstances, where the choice of life imprisonment is "unquestionably foreclosed" following a balance sheet of "mitigating and aggravating circumstances".

It can be interpreted that the general rule for sentencing a convict to death is to examine whether the existence of an ordered state requires the extinction of the individual who committed the crime. When considering a case qualifies as "rarest of rare", the intention, cruel, cold-blooded, and vicious character of a crime done without concern for the victim is frequently considered.

However, certain judges like P.N. Bhagawati have highlighted the ambiguity and vagueness in interpreting and implementing this concept. He argued that subjectivity and personal prejudices would be critical in interpreting the doctrine and awarding the death sentence, creating a system in which individuals would be permitted to live or die according to the judicial outlook. Judgement and reliance on the judges' attitude would infringe on the fundamental rights guaranteed by Articles 14 and 21 of the Indian Constitution.

As every coin has two sides, in the same way, every law and system has two sides: positives and negatives. In a country like India, removing the death penalty should not be tried or removed because that would lead to the confidence of the law violators, and that can lead to any situation that can prove to be a dangerous weapon to the law violators. But at the same time, awarding the death penalty is also not the right option. Everyone has the right to life and liberty, so without knowing their ability to rehab and recover, awarding a person a death sentence is nothing but killing a person who could have changed and been an asset to society. Even in this 21st century, people are looking for an "Eye for Eye"; it's nothing but revenge instead of justice.

According to the Indian Penal Code 1860, Eleven Offences are punishable by death, so if the court directly orders them for death, then there is a chance that a person will be hanged every day. So instead of using the death penalty for every case which is punishable by death, the court needs to observe their capability to rehab, the intention, motive, and every aspect and only when there is no other option left does the court need to decide with capital punishment and that is in "Rarest of Rare" cases. But at the same time, there should be specific guidelines and procedures where this principle can be followed where it can't. It can't be left arbitrary power to the judge as even judges are human beings. They can commit mistakes, so with a few minutes of wrong thinking by a judge, a person can be sentenced to death, or a criminal can escape the death penalty, so there should be proper guidelines and procedures where the Doctrine of "rarest of rare" principle can be applied.


6. Conclusion & Suggestions

Many nations have abolished capital punishment or the death penalty, stating that it is very inhuman and brutal and violates individuals' right to life and liberty. If a fair view is to be taken, it would be fitting to argue that the death sentence, despite its brutality, is effective in lowering criminal offences and deterring offenders to some extent. The threshold for the rarest of rare circumstances is not established. Still, based on the researchers' extensive study, it may be stated that such cases in which the people of the country desire capital punishment on a mass scale can be brought under this Doctrine.

In the Nirbhaya case, everyone in the country wanted the criminals of Nirbhaya's case to be sentenced to death as quickly as possible. Those four prisoners were eventually sentenced to death as well. As a result, it has been found that the capital penalty is constitutionally valid and appropriate when used in heinous and severe instances. Furthermore, empathy should not be shown to someone who does not value the lives of others or the integrity of his or her own country. Although determining which crimes require capital punishment is brutal, significant crimes such as rape, terrorism, and murder should always be punished with capital punishment or the death penalty.

6.1 Suggestions

Ø  There should be uniform rules: A standard specifying the criteria for identifying situations as the doctrine shall be elucidated. It can assist in clearing the confusion-causing fog that has accumulated in the minds of different jurists.

Ø  The decision must be well considered and reasonable: Even when the accused has committed a horrible act, the death penalty should not be applied if there is even a little chance that the accused will not go on to inflict more harm to society.

Ø  The death penalty should not be delayed once it has been announced: However, there should be no delay once the death penalty has been announced. Not that the accused shouldn't have the option to appeal, but that privilege should only be granted for a short period.

Ø  The execution of a person should not be rushed: The constitutional bench should thoroughly review all relevant facts before imposing the death penalty and make sure that the decision is not made hastily.

Ø  The execution of the death sentence must be proportionate to the crime they have committed for the penalty to be appropriate for the offence they committed. The death sentence shouldn't be applied in cases of minor crimes. To inculcate fear in potential offenders, operate as a deterrent, and stop them from committing such a horrible crime, it should be proportional to the gravity of the conduct.


[1] Indian Penal Code, 1860, §121, No. 45, Acts of Parliament, 1860 (India)

[2] Indian Penal Code, 1860, §302, No. 45, Acts of Parliament, 1860 (India)

[3] Indian Penal Code, 1860, §364A, No. 45, Acts of Parliament, 1860 (India)

[4] Bacchan Singh v State of Punjab, AIR 1980 SC 898.

[5] Id.

[6] India Const. art. 21.

[7] Machhi Singh & Ors. v. State of Punjab, 1983 SCR (3) 413.

[8] Mohd. Chaman v. State (NCT of Delhi), (2001) 2 SCC 28.

[9] Jagmohan Singh v. State of UP, AIR 1973 SC 947.

[10] Rajendra Prasad v. State of UP (1979), 3 SCC 646.

[11] Mithu Singh v. State of Punjab, (2001) 4 SCC 193.

[12] Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 2 SCC (Cri) 1150.

[13] Terrorist and Disruptive Activities (Prevention) Act, 1987, No. 28, Acts of Parliament, 1987 (India)

[14] T.V. Vatheeswaran v. State of T.N., (1983) 2 SCC 68

[15] Sher Amir Singh v. State of Punjab, 2019 SCC OnLine P&H 1379.

[16] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[17] A.K. Singh v. NCT Delhi 2020 (3) SCC 431.

[18] Mukesh v. NCT of Delhi 2018 (8) SCC 149.

[19] Vinay Sharma v. NCT of Delhi 2018 (8) SCC 186.

[20] Rupa Ashok Hurra v. Ashok Hurra, (1999) 2 SCC 103.

[21] State (Through Cbi) v. Santosh Kumar, 2007 CriLJ 964.

This work is licensed under Attribution 4.0 International  

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