The rare of the rarest doctrine.

The doctrine of Rarest of the rare

Author: Sudhanshu Sachan

“A punishment to be just should have only that degree of severity which is sufficient to deter others. ”                                                                                             …Beccaria

1. What is the meaning of the doctrine ‘rarest of the rare’?

The above-quoted line clearly tells us about one of the objectives of giving punishment i.e. the deterrent objective. It says that punishment should be just that is in proportion to the severity of the crime and should also have a deterrent effect on society. This doctrine of ‘rarest of the rare’ aims at achieving the same objective of punishment. There is no specific definition of this doctrine. The highest punishment that can be inflicted on a criminal or an offender is capital punishment and then comes the punishment of life imprisonment. The Supreme Court of India in the case of Bachan Singh vs. the State of Punjab¹ developed the sentencing framework for the future judges to decide between the punishment of death sentence and life imprisonment. This framework propounded by the Supreme Court of India is referred to as the doctrine of ‘rarest of the rare’. The sentencing framework wanted the judges to take into consideration two important aspects-

1. Aggravating factors- factors related to crime
2. Mitigating factors- factors related to circumstances of the accused

2.  In which case foundation of this doctrine was laid down and what were the judicial pronouncements that lead to its growth in India?

The five judges bench in the case of Bachan Singh v. the State of Punjab² propounded the doctrine of ‘rarest of the rare’.

Before Bachan Singh case,

In Jagmohan Singh v. State of Uttar Pradesh³, Supreme Court held that India cannot take the risk by experimenting with the abolition of the death penalty but the court can set a clear standard that death penalty will be an exception and not the rule in a sentence.

In Rajendra Prasad v. State of Uttar Pradesh⁴, Justice Krishna Iyer observed that “If the murderous operation of a die-hard criminal jeopardizes social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated.”⁴

The Bachan Singh case,

In the landmark case of Bachan Singh v. the State of Punjab5, the Honourable Court held that death sentence will be awarded in the ‘rarest of rare’ cases, where the alternative the option of life imprisonment is unquestionably foreclosed.

After Bachan Singh’s case,

In the case of Maneka Gandhi v. Union of India⁶, the Supreme court held that the death penalty is an exceptional punishment and will be awarded only in special cases.

In the landmark judgment of Macchi Singh v. the State of Punjab7, the Supreme Court had given 5 heads for aggravating factors which include-

   1) Manner of commission of murder

   2) The motive for the commission of murder

   3) Anti-social or socially abhorrent nature of the crime

   4) Personality of crime

   5) Nature of victim of murder

But the court did not take into account the mitigating factors.

The Apex Court did uphold the death penalty awarded to the accused of the Nirbhaya rape and murder case after calling it as “rarest of rare” case and the highest punishment was inflicted on the accused.

3. Is this doctrine a hindrance or a catalyst in the administration of justice in India?

Reasons for the formation of the doctrine-

1. The doctrine was formulated to act as a catalyst in the administration of justice as it will guide the future judges and make their work easier.
2. Earlier, it was completely dependent on the discretion of the judges to decide whether to give death sentences or award life imprisonment in a case. To have control over this unbarred discretion of the judges the doctrine was incorporated. The doctrine tells the judges to take into consideration two important factors while deciding such cases. The factors are –
3. The aggravating factors (factors mentioned in Macchi Singh v. State of Punjab⁸  and others)
4. The mitigating factors (Poor socio-economic condition, First time offender,

Background of the accused etc.)

• The doctrine was incorporated to give punishments proportionate to the gravity of the crime. 

The doctrine has been misunderstood by the judiciary and also by the public. The doctrine, in disguise, has provided more discretion to the judges. The judges have interpreted the doctrine according to their own whims and fancies.

Surely the doctrine is more of a hindrance rather than a catalyst because-

1. The reasons for the incorporation of the doctrine have not been achieved yet.
2. It has increased the ambiguity in deciding cases of capital punishment. Bharu Singh v. the State of Rajasthan9 and Amruta v. State of Maharashtra10 are classic examples of such ambiguity. In both of these cases, the accused suspected the fidelity of his wife and killed her. However, in the former case, the accused was given capital punishment while in the latter the Court refused to hold it as a ‘rarest of rare’ case.
3. The judges have not understood the real essence of this doctrine. It has become a ‘judge-centric’ doctrine.
4. There exists no principled method to remove such arbitrariness from capital sentencing. A rigid, standardization or categorization of offenses which does not take into account, the difference between cases is arbitrary in that it treats different cases on the same footing¹¹.

• Has the Indian Judiciary understood the real essence of this doctrine or it is just a ‘ ‘lethal lottery’?

“But at the end of the day, every judge has his own concept of rarest of rare. Of course, up to five to seven things will be common for everybody. Being from a farming family, I think if somebody kills to save his land, you might have a different approach. In the sense that there’s some justification, self-defense or whatever. But I’ve noticed, judges who’re not from farming families, their approach is totally different.”

-A judge who decided nearly 140 murder cases in 21 years as an appellate judge

“On the same considerations, different people react differently. If X is hearing my case I will end up hanging from a rope, but if Y is hearing it instead, I’ll live. That’s one thing which is absolutely and completely unacceptable to me. What Amnesty International has said in the Lethal Lottery report describes it very well, really.”

—A judge who decided nearly 90 murder cases in Appellate courts.

The above statements by the renowned judges clearly illustrate the stand of the Indian judiciary on this doctrine. It would be no wrong in saying that the doctrine has become a ‘lethal lottery¹²’.

1. The first statement clearly shows that it has become a ‘judge-centric’ approach.
2. The Law Commission of India has said that “ It is the personal predilection of the judges that determine whether the death penalty should be given or not.”
3.  The judges have misunderstood this doctrine. The meaning that this doctrine has assumed in the last 40 decades after the decision of the Bachan Singh case is very different from the real meaning of the doctrine. The doctrine was not meant to be a measuring factor in measuring the rarity of crime for giving the punishment of the death penalty. The judges were not given the task of measuring the rarity of crime but were given a more comprehensive and nuanced task of giving decisions by striking a balance between the aggravating and mitigating factors.

In the judgments of the judiciary, it can be seen that various heads of aggravating factors have emerged but the mitigating factors have been sidelined. The judiciary has completely ignored the real meaning of this doctrine and has interpreted it in its own way.

5.  What is the status quo and scope of the doctrine?

        Status quo of the doctrine-

1. The doctrine has been in conflicts with Articles 14, 19 and 21 of the Constitution of India.
2. Also, it has been in contravention with various international statutes and conventions.
3. Because of its various interpretations, it has created ambiguity in the administration of justice. The background of the judges is a very important factor leading to the various interpretations.
4. The unguided nature of the doctrine is also a major factor for is poor implementation.
5. The pressure of media and the public is also a factor that has given a different approach to the doctrine.

The doctrine if truly enunciated it its right spirit has a huge scope. But the meaning that it has got in the last few decades makes this a though process. The doctrine needs reforms to overcome its unguided nature. The judges need to interpret the doctrine in its right spirit without being moved by their own beliefs. It is an evolutionary process and will take time.

1. Bacchan Singh v. State of Punjab, AIR 1980 SC 653
2. Bacchan Singh v. State of Punjab, AIR 1980 SC 653
3. Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947
4. Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 SC 916
5. Bacchan Singh v. State of Punjab, AIR 1980 SC 653
6. Maenka Gandhi v. Union of India, AIR (1983)2 SCC 277
7. Macchi Singh v. State of Punjab, AIR 1983 SC 957
8. Macchi Singh v. State of Punjab, AIR 1983 SC 957
9. Bharu Singh v. State of Rajasthan, (1994) 2 SCC 407
10. Amruta v. State of Maharashtra, AIR 1983 SC 629
11. Law Commission of India, Conclusions and Recommendations, 262, The Death Penalty, 213 (August 2015).
12. Amnesty International, ,ASA20/007/2008,  Lethal Lottery: The Death Penalty in India A study of Supreme Court judgments in death penalty cases 1950-2006,(May 2008).