How the Court decides the ‘Rarest of the Rare’ case for the Death Penalty

The death penalty is the execution of an offender according to the legal procedure of the state in which it exercises its power to take an individual’s life. The death penalty, which is the highest punishment that is present in India currently, is only awarded in the occurrence of the most heinous crimes and is only prescribed as a punishment to such crimes. The punishment of the death penalty in the Indian legal system and whether it should be abolished has been an intense topic of debate in the legal system of India and other parts of the world.

The punishment is provided for various offences such as criminal conspiracy, murder, a war against the government, abetment of mutiny, dacoity with murder, and terrorism. The death penalty for murder is present in the Indian Penal Code which India retained in 1947. It has been prescribed in the above section as an exception to life imprisonment.

The death penalty which is present in the Indian Legal System as a punishment is supposed to act as a deterrent, as given in the 35th Report of the Law Commission, 1967 and in other judgements namely Shiv Mohan Singh v State of Delhi (Delhi administration), Ediga Anamma v State of AP and Charles Sobraj v Supt. Central Jail Tihar New Delhi. The SC in the judgement of Bachan Singh v State of Punjab considered the arguments in favour of abolishing the death penalty and held S.302 of the penal code to be unconstitutional.

Thereafter, the Parliament of India considered the same arguments and enacted S.354(3) of the CRPC, which indicated that death penalty can be given in exceptional cases for murder and for some other offences under the IPC where special reasons for the same should be recorded.

After 1947 there had been numerous death sentences given to convicts but there was no standard base laid down on how to inspect cases and choose between the alternatives of life imprisonment and the death penalty, where there was such an alternative to the death penalty. The SC in Bachan Singh held that the death penalty should be given to murders which were uncommon i.e. exceptional cases of murder and other heinous crimes.

How the Court decides the 'Rarest of the Rare' case for the Death Penalty

It has been held to be customary in the judicial process since the above judgement that only in the case of extraordinary, uncommon and heinous crimes that death penalty be awarded to the convict and the facts of the case or the circumstances should be such that it should be held to be extraordinary, heinous and rare which would justify the penalty. While handing out a punishment to a convict, it is up to the court to determine based on the various facts and circumstances of the case, whether they are special or aggravating factors which would then make way for the court to choose between the two alternative sentences, one of which is the death penalty. The way the court evaluates the facts and circumstances connected with the case according to the procedure prescribed in the CRPC and the Evidence Act.

The current S.354(3) of the CRPC says that there must be special reasons given by the court if it gives the death penalty. The new exception of special reasons means that the death penalty should be given only in extreme reasons. This change gives discretion to judges of the court to decide if the case is fitting as an extreme case based on the facts of it. Such observations were made in the hon’ble court in Balwant Singh v State of Punjab, which also observed that as there is no straight jacket formulae definition of special reasons, the decision of whether to award the life imprisonment or the death sentence was best left to the discretion of the judge.

Similar observations were also made in the case of Jagmohan where it was stated- ‘the normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of the death penalty only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.’ It was further observed by the court that- ‘If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence.’

Though such a clause of special reasons was included in s.354(3), the Parliament of India left to the discretion of the court to decide what constituted special reasons or an extreme case. Before the judgement of Bachan Singh v State of Punjab, there had been no set guidelines for the court through which it could determine which cases were aggravating and which were mitigating for the death penalty. But the judgement in the above case set the doctrine of the ‘Rarest of the Rare case’ which would be a kind of broad base on which courts could determine on the facts and circumstances whether the case fell in the special category for the death sentence. This was done because it was thereby inferred that there could not be rigid or watertight compartments into which crimes could be differentiated for awarding the death penalty. The best that could be done was to establish or spell or broad guidelines for the court consistent with the policy of the legislature regarding section 354(3)

How the Court decides the 'Rarest of the Rare' case for the Death Penalty

The judgement of Bachan Singh v State of Punjab further pondered over the question of what the standards or norms could be, restricting the area of imposition of the death penalty to a narrow category of murders. Even in case, the court focuses on only a single category or type of crime, it is naturally impossible to set a standard rules or generalisation for the facts and circumstances of each case to determine whether the case is extraordinary or not, if the categorization of extreme case must be made on the basis of the same.

Also, it was observed that laying down rigid standards is the duty of the legislature and as such the judiciary should not tread into the policy-making area of the legislature. The Hon’ble Supreme Court in the judgement before proceeding with laying down broad guidelines for deciding which cases could be classified as extreme first started with reflecting on how the US Supreme Court had dealt with the same issue.

What certain US supreme court judgements had laid down was that there were certain aggravating factors and mitigating factors in determining the punishment for a crime. It had laid down certain crimes which could be classified as heinous and aggravating. Then it started with drawing out what type of murder cases could come under such extreme category. First, aggravating factors which warranted the death penalty in murder cases were laid out, cases of pre-planned, cold-blooded and calculated murder could naturally be classified as rarest of the rare cases. Along with this, the murders which were diabolically conceived and cruelly executed would also justify the imposition of the death penalty.

The custom of focusing on the facts of the crime was reversed to focusing on the criminal in the case of Rajendra prasad. In this case, it was held by the hon’ble court that the special reasons referred to in s.354(3) referred not to the crime as such but to the criminal. The court in the Bachan Singh judgement disagreed with this argument and instead held that focus should be given to the facts of the crime as well as to the criminal. This was because these two aspects were intertwined in such a way that it would be difficult to look at only one of them and determine the aggravating factors for the sentence. The hon’ble court further spelt out factors which could be classified as aggravating-
1) If the murder has been committed after previous planning and involves extreme brutality; or
2) If the murder involves exceptional depravity; or
3) If the murder is of a member of any of the armed forces of the Union or of a member of a police force or of any public servant and was committed –

  1. While such member or public servant was on duty; or
  2. In consequence of anything done or attempted to be done by such member or public servant whether at the time of the murder he was such member or public servant, as the case might be or had ceased to be such member or public servant; or ‘
  3. If the murder is of a person who had acted in the lawful discharge of his duty under s.43 of the code of criminal procedure, 1973, or who had rendered assistance to a magistrate or police officer demanding his aid or requiring his assistance under s.37 and s.129 of the said code.
How the Court decides the 'Rarest of the Rare' case for the Death Penalty

Along with accepting such factors as being considered, the hon’ble court held that it would be unjust to call such a list as exhaustive and as doing so would limit the jurisdiction in variable cases. This being the case of the aggravating factors, the hon’ble court also prescribed certain mitigating factors which need to be considered and thus both the aggravating factors and the mitigating factors need to be compared to see whether the death penalty should be given or not.

The Hon’ble Supreme Court in the case of Machhi Singh v State of Punjab further added to the rarest of the rare doctrine by observing that the death sentence could be given in a case where the crime of murder is so appalling and grotesque that it would shock the collective conscience of the society. It also further expanded the factors which would make a case fit as a rarest of the rare case. These factors were –

  1. The manner of the commission of murder in which the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner to arouse intense and extreme indignation of the community.
  2. The motive for the commission of murder which evinces total depravity and meanness.
  3. Anti-social or socially abhorrent nature of the crime.
  4. The magnitude of crime which can be explained as when the crime is enormous in proportion.
  5. The personality of the victim of murder.

This too was not an exhaustive list given by the SC, rather it was an addition to the factors given in the judgement of Bacchan Singh v State of Punjab.

How the Court decides the 'Rarest of the Rare' case for the Death Penalty


Since the laying down of the rarest of the rare doctrine, there has been a considerable amount of case laws in the area of capital punishment. While this doctrine was devised to single out the death penalty as a rare punishment, the number of death penalties given by courts in recent decades have increased. For example, according to the Global report on death sentences and executions, courts in India awarded as many as 136 death sentences in 2016 compared to 75 death sentences in 2015, thereby registering an 81% increase in death sentences.

Importantly, capital punishment was awarded mainly for the crime of murder. Another example is that 186 death sentences were handed out in 2018, most of which were mainly for sexual crimes. Even though the increase in death sentences is on the rise in recent years, there are a variety of other factors which may be attributed to the increase. The Report of the 20th Law Commission in 2015 recommended the abolition of the death penalty except for terror-related cases. The Commission did not recommend this abolition immediately, but in a way that its complete abolition can be brought about in the future.

Given the uncertainty in evaluating the effect of capital punishment on reducing crime, there must be a policy reassessment on capital punishment, to see whether it is really working effectively as a deterrent, if there are any other alternatives available for reducing crime as well as making equitable punishment for criminals.

Kaustubh Kulkarni

Law student at ILS Law College, Pune
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