Emergence of The Rarest of the Rare Doctrine

Emergence of The Rarest of the Rare Doctrine

Author : Devansh Saraswat




The Apex Court of the Nation in Bachan Singh v State of Punjab[1] laid down the principle, “Life imprisonment is the rule and death sentence is an exception.” Supreme Court, in due course of its judgement in the Bachan Singh case propounded the doctrine of the rarest of rare case, which holds extremely high significance today. The Rarest of the Rare doctrine plays a decisive role in the sentencing of the accused, whether the accused is entitled to survive or whether his life is to be taken away is completely dependent on the interpretation of this doctrine. The doctrine is applied to cases where the circumstances are so aggravating that there is no reason as to why the offender should not be hanged till death.

Emergence of the Doctrine

Indian laws do not possess a supportive view of the death penalty and neither they deter it absolutely. A few instances like Section 121[Waging War against the State], Section 302[Murder], Section 364A[Kidnapping for Ransom] etc. and other provisions of the Indian Penal Code 1860, The Commission of Sati (Prevention) Act 1987, NDPS Act 1985, Prevention of Terrorism Act 2002, The Army Act, Bombay Prohibition (Gujarat Amendment) Act, 2009 etc prescribe offences punishable with death.

In the case of Jagmohan Singh v. State of Uttar Pradesh[2] death penalty was challenged as violative of Articles 14, 19 and 21 for want of procedure and it was held that death sentence takes place in accordance with the procedure established by law. The Court upholding the constitutionality of death penalty held that deprivation of life is constitutionally permissible for being recognised as a permissible punishment by the drafters of our Constitution. It was further observed that the judge makes the choice between capital sentence or imprisonment of life on the basis of circumstances and facts and nature of crime brought on record during trial.

Further in Rajendra Prasad v. State of Uttar Pradesh[3] The Apex Court in the instant case held that the special reasons sought to be recorded must relate to the criminal rather than the crime and death penalty is the last step where the murderer is unlikely to be cured and may tend to murder others if left alive. Further, the Court said that it could be awarded only if the security of the state and society, public order and the interests of the general public compelled that course.

In the landmark judgement of Bachan Singh v. State of Punjab The Supreme Court in 1980 attempted to carve out a doctrine specifically for offences punishable with death so as to reduce the ambiguity for courts as to when to go for the highest punishment of the land. The doctrine was laid down in 1980 in the case of Bachan Singh by a Constitution Bench of 5 judges while deciding the Constitutional validity of death penalty provided in Section 302 IPC and the sentencing procedure as provided under Section 354 (3) of the CrPC,1973.

In the present case, the accused through an appeal challenged his death sentence questioning whether the murder of three persons by him would constitute special reasons as requisite under Section 354(3) CrPC,1973. The court primarily held that :-

  1. In order to qualify in the category of aggravating circumstances which may form the basis of special reasons in Section 354(3), circumstance found on the facts of a particular case, must evidence aggravation of an abnormal or special degree.
  2. Some mitigating circumstances which the courts shall take into account and given great weight in the determination of sentence are – Extreme mental or emotional disturbance of the accused, age of the accused i.e. extreme youth or old, the probability that the accused would not commit violent acts further, probability that the accused can be rehabilitated, moral justification by the accused of the crime committed or duress or domination by someone else over the accused.
  3. For persons convicted of murder Life imprisonment is the rule and death sentence an exception. Human life should not be taken save in the rarest of rare cases when the alternative option is unquestionably foreclosed, thereby propounding the rarest of rare doctrine for the determination of death sentence.

This led to the emergence of doctrine of Rarest of Rare cases to facilitating the cases involving death sentence. Though, this doctrine is not free of criticism, it being beyond the scope of this article.

[1] AIR 1980 SC 898.

[2] AIR 1973 SC 947.

[3] 1979 3 SCC 646.