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By Eisha Surana


The test of the rarest of rare has been a catalyst in reducing ambiguity surrounding the award of the death penalty and life imprisonment. It was laid down in the case of Bachan Singh v. State of Punjab, which potentially initiated the revival of judicial dicta stating that a death sentence need not be given mechanically and instead be awarded upon a thorough examination and assessment of all possibilities of reformation. Moreover, given the fact that the death penalty, among all other punishments, has a unique standing in the Indian penal system due to its retributive and irrevocable nature, its status within the legal system has become limited to being an exception from the general rule pertaining to life imprisonment in 1973 through an amendment to the Code of Criminal Procedure. In view of the preceding developments, a new wave in the death penalty jurisprudence in the future is highly likely. As far as the current situation is concerned, the test certainly has resolved the course of judicial pronouncements concerning the death penalty in India. However, due to the lack of a statutory definition for its application, there is no standardized method of its usage leading to vagueness and subjective articulations of this doctrine. This paper seeks to examine the relevance of the rarest of rare doctrine in the ensuing judgements, its effectiveness, and its impact on society. It also attempts to explore the scope of the same in light of the current trend of the death penalty in India.

Keywords: Capital Punishment, Death Penalty, Fundamental Rights, Human Rights, Indian Constitution, Rarest of Rare.

1. Introduction

The death penalty is one of the most contentious and ancient forms of punishment in practically every nation. Due to its retributive and irrevocable nature, there have been many deliberations in various judicial pronouncements about the imposition of the death penalty in the rarest of rare circumstances.

Given the fact that India is a democratic nation that upholds the rights of its citizens, the debate over the death penalty has been subject to public and judicial scrutiny. In the case of Bachan Singh v. State of Punjab[1], the Apex Court held that the death penalty should be imposed in cases of the most heinous crimes where the doctrine of the rarest of rare cases applies, it is still ambiguous as to how the death penalty be imposed in a nation that championed human rights even though it infringes the fundamental rights. The award of the death penalty in India is considered a powerful tool having a deterrent effect for preventing heinous crimes against society. Considering the country's crime rate, the legislature has passed numerous laws, defining several penalties as an attempt to deter crime by the threat of retribution. Despite numerous rulings, India has not yet abolished the death penalty[2], but the judges have made a modest alteration to the way it is applied viz., the rarest of rare test. 

In the said context, the rarest of the rare test evolved in the case of Bachan Singh v. State of Punjab[3], which arose out of a challenge pertaining to section 354(3) of the Code of Criminal Procedure, 1973[4]. It impliedly provided that the death penalty should be pronounced only when the “alternative option” is undeniably precluded. Subsequently, the judgements of the Apex Court indicated a trend of developing a balance sheet consisting of mitigating and aggravating circumstances for pronouncing the convict's sentence, particularly in the case of Machhi Singh v. State of Punjab[5].

Having outlined the underlying concept of the rarest of rare test, an attempt is now made to methodically analyze the relevance and validity of this principle through doctrinal research by reviewing relevant statutory provisions, case laws, and other pertinent information.


2. Scope of the doctrine

Capital punishment has been in place since the inception of human civilization. While the imposition of the death penalty was perceived as a defiling act in primal societies, it is now considered either uncommon or exceptional in the contemporary era. It has also revived the debate on the statutory status of the death penalty and further the Doctrine of the rarest of rare cases in India.

To understand the judicial applicability of this principle, it is, therefore, critical to examine the relevant cases that have attempted to define its boundaries:

The death penalty has long existed as a violation of fundamental rights. However, after intense deliberation, the court rejected this viewpoint, as in the case of Jagmohan Singh v. State of U.P.[6], in which the concept of the death penalty was declared constitutional. It held that it not only deters crime but also prevents society. The court also stated that it is not wise to experiment with the absolute removal of the death penalty in India. Instead, a standard test may be devised, thereby implying that the death penalty will be exceptionally awarded instead of the rule in punishment. Moreover, the circumstances of the case will determine the need to pronounce capital punishment to safeguard state security, public interest, and order. It subsequently led to the foundation of the rarest of rare test in Bachan Singh v. State of Punjab[7]. Thus, the following parameters were highlighted:

(i)  The death sentence should be given in extraordinary cases of criminality.

(ii) Both the Aggravating circumstances (referring to the crime) and the Mitigating circumstances (referring to the criminal) must be considered before ruling out the possibility of the death penalty.

(iii) As previously stated, the death penalty is an exception, and life imprisonment is the general norm. In other words, the death penalty should be given only when the "alternative option" proves to be an entirely inadequate punishment while considering the circumstances surrounding the offence.

(iv) The mitigating circumstances should be rendered with the required weightage to strike a balance between the declared aggravating and mitigating factors by essentially creating a balance sheet containing all of them.

When comparing the two prominent judgements, the Bachan Singh case and the Jagmohan Singh case, in which the rarest of rare test applied, it becomes apparent that the purpose was to prevent arbitrariness in the judicial power while pronouncing punishment or sentence. While the objective of the death penalty should be substantiated based on principles, the Jagmohan Singh case, also stated that having discretion on the doctrine is the simplest means of safeguarding the accused. In the Bachan Singh case, it was observed that the expression "special reason" in section 354(3) of the Criminal Procedure Code required an odd and subjective construction because of its ambiguity. Be that as it may, the court held that fixing a standardized principle is a matter of policy that ought to be performed by legislation. 

Subsequently, Machhi Singh v. State of Punjab[8], a landmark judgement upon the captioned subject, provided further clarification upon the doctrine and reflected on the brutality of the crime. Additionally, the court laid down the requisite categories of murder wherein the rarest of the rare test may be applied, which may fall under Motive for the commission of murder; Manner of commission; Magnitude and extent of crime; Anti-social or repugnant nature of the crime, and Personality of the victim of murder.

In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra[9], It was held that the dictum of rarest of rare established the principle stating life imprisonment as the norm and death sentence as the exception while applying Section 354(3) of the Code of Criminal Procedure. Moreover, it is a well-established rule of interpretation that exceptions must be strictly interpreted. In this light, this dictum lays an enormous responsibility on the court to conclude whether the death penalty is suitable, along with conducting a fair examination of the factual evidence to satisfy the exceptions entrenched in the rarest of rare dictum. Several cases were cited including Bachan Singh[10], Rajendra Prasad,[11] Machhi Singh[12] and the court also referred to the 48th Report of Law Commission that stressed on  considering socio-economic factors of the accused while sentencing.[13]

Similarly, the Apex Court in the case of Rajendra Pralhadrao Wasnik v. State of Maharashtra[14], held that the law construed and articulated by several judgements of this Court clearly and unambiguously necessitates that the probability of a criminal capable of being rehabilitated and reformed in society should be thoroughly and earnestly assessed by the courts before issuing the sentence of death. It forms one of the prerequisites for "special reasons" under Section 354(3) of the Code of Criminal Procedure, which should not be taken lightly since it involves the deprivation of an individual's life.

All these are landmark judgements that have attempted to clarify and produce a definite explanation for applying the said doctrine, however, it is pertinent to note that irrespective of the courts’ review and activism, the inscription of a statutory definition is a policy matter of the legislature to put an end to the vagueness and subjective articulations of this principle.


3. Death penalty from rule to exception

Before the Criminal Procedure Code was re-enacted in 1955, section 367(5) of the Code obliged a court to give a justification for not sentencing the death penalty in cases where an individual was accused of an offence having capital punishment. Consequently, It established the death penalty as a general rule while life imprisonment was awarded in exceptional cases.[15]

The stated provision was amended by the Criminal Code of 1973. However, it remained unclear in what circumstances the death penalty can be declared.[16] Following the reinstatement of the Code of 1973, section 354(3) necessitated the need for exceptional reasons for imposing the death penalty. As a result, the status of the death penalty in India changed to become an exception.

3.1 .Constitutionality of the doctrine with respect to Part III of the Indian Constitution

The rarest of rare test is marked by stark debates and deliberations leading to two prominent sides – Abolitionists and Retentionists. While the former category placed their arguments on the fact that the said doctrine is violative of the fundamental rights guaranteed in Part III of the Constitution of India[17], the latter’s argument is followed by the court’s ruling in the Bachan Singh case, thereby perceiving the retention of capital punishment as a form of punishment.[18]

In Jagmohan Singh case, four crucial contentions were placed before the court against the constitutional validity of this principle:

(i) The doctrine contradicted the guarantee of Article 19 (1)(a)-(g) of the Constitution;

(ii) The approach used for determining the sentence violated the fundamental right to equality under Article 14 of the Constitution;

(iii) There was a lack of a systematic and standard method for awarding the punishment under the Code of Criminal Procedure, 1973, thereby resulting in the violation of Article 21;

(iv) The use of discretionary powers by the judges in the said premise could lead to arbitrariness.

However, while successively deconstructing the aforementioned arguments, the Supreme Court affirmed the constitutionality of the death penalty in this case. It held that deprivation of life and personal liberty was not illegal as it was imposed after a trial in such a manner as prescribed by law. Likewise, in the judgement pronounced in Deena v. Union of India[19], the Court stated that the practice of hanging for the execution of a death sentence does not violate the guarantee under Article 21.

Another case is Mithu v. State of Punjab[20], in which the Supreme Court held that Section 303 of the Indian Penal Code[21] was unconstitutional since it violates Articles 14 and 21 of the Indian Constitution pertaining to the Right to Equality and Right to Life and Personal Liberty respectively, however, the death sentence is still applicable in the rarest of rare cases. 

Furthermore, in the Rajendra Prasad case, Justice V.R. Krishna Iyer advocated the removal of the death penalty and further commented that it should only be retained in cases of white-collar offences. However, the Court overturned Rajendra Prasad's ruling in the Bachan Singh case, thereby stating that the award of capital punishment under section 302[22] of the Indian Penal Code does not contravene Article 21 of the Indian Constitution.

All the aforementioned judgements facilitate an understanding of the various contentions against the constitutionality of this doctrine and the courts’ inferences while pronouncing the decisions, thereby performing the dual function of providing fair, just, and reasonable judgement as well as accepting or rejecting the contention as per the object of the rarest of rare dictum.

3.2.Death penalty and human rights in India

Notwithstanding the centrality of the right to life in the catalogue of human rights[23] under the Universal Declaration of Human Rights (UDHR),  international law does not outlaw capital punishment but limits its applicability. Moreover, while complying with the guidelines issued by the United Nations Economic and Social Council (UNECOSOC), the Indian penal system exercises the power to pronounce the death penalty only in the rarest of rare cases as it is capable of affecting the general public.

The Fundamental right to life and personal liberty guaranteed under Article 21 of the Indian Constitution presupposes that a legal punishment, even the death penalty, will be regarded as reasonable and fair if it is in accordance with the procedure established by law. Even though in international law, taking one's life is an infringement of an individual’s human rights, Article 21 of the Indian Constitution only states that if a person constantly disturbs the public at large due to his criminal nature, that person’s life should only be taken if it is deemed to be in the interest of the public. The human rights of both the accused and the victim are taken into account in this way. The suffering of the criminal should therefore be greater than the pleasure he derives from committing the crime, according to Bentham's theory of Penal Objectives.[24] Thus, the underlying object for which the death penalty is still applicable in the Indian context is the greater good of the general public.[25]


4. Conclusion

The efficacy of the rarest of rare test is connected with the statutory and empirical status of the death penalty. Having said that, the death penalty, which is viewed as cruel and inhumane in some countries, is considered constitutional in India. More importantly, when a competent court finds a person guilty of a particular crime, the constitutional right under Article 21 does not provide any bar on the execution of the accused. In other words, the Constitution that granted fundamental rights to its citizens has also provided for the death sentence as a punishment for certain offences. As previously noted, the applicability and legality of capital punishment in India are highly contested and deliberated, attracting the attention of the government and non-governmental institutions in addition to the public at large. Although India is a working member of the United Nations, having ratified several international human rights instruments, the death penalty is still considered a part of the Indian penal system. 

However, the Indian Judicial System currently follows the principle that observes the death penalty as an exception and life imprisonment as the norm, thereby, giving rise to the rarest of rare test. It implies that the death sentence with be pronounced only in extraordinary circumstances, which also places an obligation on the court to state the “special reasons” for the same. While the provision of capital punishment in the rarest of rare case is not violative of the human rights guaranteed by the Indian Constitution, the constitutional courts time and again attempt to clarify and define a standard procedure for its application in order to remove defects and allay the concerns of the general public.

Given the fact that the object behind this doctrine is to not only deter the crime of the criminal but also prevent the society at large, it is ultimately the public voice that acts as an external aid in understanding the dynamic nature and consequence of this doctrine.

Furthermore, to regulate the debates and mitigate the concerns surrounding the principle of rarest of rare, it is essential to formulate and develop a set of uniform guidelines that may not be exhaustive but must be capable of outlining the fundamental parameters for identifying a rarest of rare case. It is also crucial to ensure that the pronouncement of the death sentence should neither be given in haste nor there be any unnecessary delay once it has been given. Additionally, the punishment accorded to the accused should be coherent with the commission of the offence. Ultimately, the true remedy lies in an effective legal system and efficient prosecution, ensuring the grasp of the hands of the law.


[1] Bachan Singh v. State of Punjab, (1980) 2 SCC 684.

[2] Akanksha Madaan & A.S. Gupta, Capital Punishment in Rarest of Rare Case: Is it Just and Fair?, Manupatra (May 15, 2023, 6:00 PM), http://docs.manupatra.in/newsline/articles/Upload/DFA397D3-B539-419D-A79B-28D367CFEE09.pdf.

[3] Bachan Singh v. State of Punjab, (1980) 2 SCC 684.

[4] Code of Crim. Proc., 1973, § 354(3), No. 2, Acts of Parliament, 1973 (India).

[5] Machhi Singh v. State of Punjab, (1983) 3 SCC 470.

[6] Jagmohan Singh v. State of U.P., (1973) 1 SCC 20.

[7] Bachan Singh v. State of Punjab, (1980) 2 SCC 684.

[8] Machhi Singh v. State of Punjab, (1983) 3 SCC 470.

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

[10] Bachan Singh v. State of Punjab, (1980) 2 SCC 684.

[11] Rajendra Prasad v. State of U.P., (1979) 3 SCC 646.

[12] Machhi Singh v. State of Punjab, (1983) 3 SCC 470.

[13] Dhananjay Kashyap, Death Penalty in India, 70 ASIAN J. LEGAL STUDIES (2013).

[14] Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 495.

[15] Dhananjay Kashyap, supra note 13

[16] Id. at 74.

[17] India Const. art. 14-35.

[18] S. Muralidhar, Hang Them Now, Hang Them Not: India’s Travails with the Death Penalty, 40 J. INDIAN L. INST. 143 (1998).

[19] Deena v. Union of India, (1983) 4 SCC 645.

[20] Mithu v. State of Punjab, (1983) 2 SCC 277.

[21] Indian Penal Code, 1860, § 303, No. 45, Acts of Parliament, 1860 (India).

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

[23] R. Venkata Rao & Prakash Sharma, Death Sentence in India: Is It Rare Yet Arbitrary?, SSRN ELEC. J. (2022).

[24] I.G. Ahmed, Death Sentence and Criminal Justice in Human Rights Perspective, 2(4) ASIAN RESONANCE (2013).

[25] Madaan & Gupta, supra note 2, at 31.

This work is licensed under Attribution 4.0 International  

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