The Rarest of Rare Conundrum in India
Why in news?
A trial court’s verdict in Kolkata’s RG Kar hospital rape-murder case has once again brought
to the fore the concept of ‘rarest of rare’.
The court sentenced the convict to a life term instead of giving the death sentence
that the CBI had demanded and the victim’s family had hoped for.
The judge turned down the plea for capital punishment on the ground that, in his opinion, the
crime did not fall under the ‘rarest of rare’ category.
The "Rarest of Rare" doctrine
The "rarest of rare" doctrine in India's judicial system serves as a critical guideline for
imposing the death penalty, ensuring that such a sentence is reserved for only the most
heinous offenses. This principle mandates that life imprisonment is the norm, with capital
punishment as an exception, applied only when the crime's severity leaves no alternative.
Historical Context and Judicial Precedents
The doctrine was first articulated in the landmark case of Bachan Singh v. State of
Punjab (1980), where the Supreme Court upheld the constitutionality of the death penalty
but emphasized its application only in the "rarest of rare" cases.
The Court outlined that judges must consider both aggravating and mitigating circumstances
before deciding on capital punishment. Aggravating factors might include the brutality of the
crime or its impact on society, while mitigating factors could involve the accused's age,
mental health, or potential for rehabilitation.
Further clarification came in Machhi Singh v. State of Punjab (1983), where the Court
provided specific criteria to identify such cases:
1. Manner of Commission: Crimes committed in an extremely brutal or grotesque
manner that provoke intense public outrage.
2. Motive: Offenses driven by motives that demonstrate depravity, such as killing for
monetary gain.
3. Social Impact: Crimes that shock the social conscience, like dowry deaths or
murders of marginalized individuals.
4. Magnitude: Cases involving multiple murders or large-scale atrocities.
5. Victim's Status: Murders of vulnerable individuals, including children, women, or the
elderly.
These guidelines aim to assist judges in determining when the death penalty is warranted,
ensuring a balance between justice and mercy.
Issues and Challenges in the Application of the "Rarest of Rare" Doctrine:
1. Judicial Discretion and Subjectivity
○ The lack of a statutory definition for the "rarest of rare" doctrine leads to
varying interpretations by different judges.
○ Case law precedents (Bachan Singh v. State of Punjab, Machhi Singh v.
State of Punjab) provide guiding principles, but their application remains
inconsistent across cases.
○ Example: One judge may award the death penalty in a case, while
another may commute the sentence to life imprisonment under similar
circumstances.
2. Inconsistency in Sentencing
○ Different High Courts and trial courts have taken divergent views on
similar crimes, leading to concerns about arbitrary application.
○ Example: In cases of brutal rapes and murders, some courts impose the
death penalty, while others opt for life imprisonment, citing mitigating
circumstances.
3. Absence of Legislative Clarity
○ The Indian Penal Code (IPC) (now replaced by Bharatiya Nyaya Sanhita,
2023) does not provide clear criteria for what constitutes a "rarest of rare"
case.
○ Courts rely only on judicial interpretations, making sentencing case-
dependent rather than rule-based.
4. Socio Economic and Caste Biases
○ Studies (The Death Penalty Research Project, 2016) indicate that a
disproportionate number of death row convicts belong to marginalized
communities.
The study also gives a state-wise break-up of the prisoners and the trial
process, which reveal wide disparities:
Gujarat: 79 per cent (15 prisoners) of those facing death sentence belong to religious
minorities who make 12 per cent of the state’s population.
Maharashtra: 50 per cent (18 prisoners) are Dalits and Adivasis, who form 20 per
cent of the state’s population.
Kerala: At 93 per cent (14 prisoners), it had the highest percentage of those
sentenced to death from economically vulnerable communities.
○ Wealthier convicts often have access to better legal defense, which may
help them avoid capital punishment.
5. Mitigating vs. Aggravating Circumstances Debate
○ Courts weigh mitigating factors (age, mental health, remorse, family
background) against aggravating factors (brutality, premeditation, public
outrage).
○ However, what constitutes sufficient mitigation remains unclear, leading
to wide variations in judicial decisions.
○ Example: A young convict may escape the death penalty in one case but
not in another due to different judicial interpretations.
6. Impact of Public and Media Pressure
○ High-profile cases often influence judicial outcomes, as public sentiment
can push for harsher punishment.
○ Example: In cases like Nirbhaya (2012), public outrage played a role in
securing the death penalty, while in other equally heinous crimes, media
silence has led to different sentencing outcomes.
○ The Pune Porsche car crash case in 2024…
7. Global Human Rights Criticism
○ International human rights organizations argue that the "rarest of rare"
doctrine is vague and arbitrary, violating the principles of a fair trial.
○ The United Nations and Amnesty International advocate for the abolition
of the death penalty, citing the risk of judicial errors and wrongful
executions.
8. Judicial Errors and Irreversibility of Death Penalty
○ Unlike other punishments, capital punishment is irreversible. Judicial
mistakes cannot be rectified post-execution.
○ Many death row cases have later been overturned, proving that errors in
judgment are possible.
○ Example: The acquittal of certain convicts after spending years on death row
due to new evidence.
What should be done?
To address the challenges and inconsistencies in the application of the "rarest of rare"
doctrine, a multi-pronged approach is necessary. The following policy recommendations
and judicial reforms can help create a more uniform, fair, and transparent capital
punishment system in India.
1. Legislative Clarity on "Rarest of Rare" Definition
● Enact a statutory framework in the Bharatiya Nyaya Sanhita (BNS) to clearly
define what constitutes "rarest of rare" crimes.
● Provide specific legal guidelines on aggravating and mitigating circumstances
to reduce judicial subjectivity.
● Reference global best practices, such as the United Nations Standard Minimum
Rules for the Administration of Criminal Justice (Tokyo Rules), to ensure
compliance with human rights standards.
2. Creation of a Sentencing Commission
● Establish a National Sentencing Commission under the Law Commission of
India to provide binding sentencing guidelines for capital punishment.
● The commission can:
○ Develop objective sentencing criteria.
○ Conduct periodic reviews of capital punishment cases.
○ Ensure uniformity across different High Courts and trial courts.
3. Mandatory Review by a Larger Bench
● Require all death penalty cases to be reviewed by a Constitution Bench (5 or
more judges) in the Supreme Court.
● This would reduce subjectivity by ensuring that multiple judges deliberate on the
severity of the case before confirming a death sentence.
4. Judicial Training and Sentencing Standardization
● Introduce specialized training for judges on sentencing principles, focusing on:
○ Assessing aggravating and mitigating factors.
○ Balancing legal precedents and contemporary human rights concerns.
○ Minimizing unconscious biases (caste, class, gender) in sentencing.
5. Proportionality in Sentencing
● Capital punishment should be strictly proportionate to the severity of the crime.
● Courts should ensure that the punishment reflects the gravity of the offense
while avoiding undue harshness.
6. Safeguards Against Wrongful Convictions
● Strengthen forensic investigation mechanisms to ensure that convictions are
based on irrefutable evidence.
● Implement a mandatory independent review process for all death penalty cases,
ensuring that wrongful convictions are minimized before execution.
7. Alternative Punishments: Life Imprisonment Without Parole
● Introduce "Life Imprisonment Without Parole" as an alternative to the death
penalty in cases where execution may not be necessary.
● This ensures that offenders cannot harm society again while avoiding irreversible
judicial errors.
8. Judicial and Executive Cooperation
● Improve coordination between the Supreme Court, High Courts, and the
President’s Office to ensure a uniform approach in deciding mercy petitions and
death row appeals.
● Expedite the review process of mercy petitions to avoid prolonged delays in
execution, which cause mental trauma to death row prisoners.
9. Greater Public and Parliamentary Debate on the Death Penalty
● Conduct nationwide debates and expert consultations on the future of the death
penalty in India.
● Examine whether India should move towards complete abolition, as many
democratic nations have done.
● Consider reforms based on the 262nd Law Commission Report (2015), which
recommended abolition for all crimes except terrorism-related offenses.
10. International Best Practices and Human Rights Considerations
● India should periodically review its capital punishment laws in light of United
Nations resolutions and global human rights frameworks.
● The Supreme Court can refer to international judicial trends from countries like
the UK, Canada, and Germany, which have abolished the death penalty.
Conclusion-
The "rarest of rare" doctrine has played a crucial role in limiting the arbitrary use of capital
punishment in India. However, ambiguities in interpretation, judicial discretion, and
systemic biases create significant challenges.
Moving forward, a combination of legislative clarity, judicial reforms, sentencing
guidelines, and alternative punishments can ensure a more just, consistent, and
humane criminal justice system in India.
While the debate on the abolition of the death penalty continues, it is imperative to
enhance the fairness and transparency of sentencing until a broader consensus is
reached.
