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Rarest Of Rare

Today I will be writing about the rarest of rare doctrine that is used primarily in criminal law while awarding death penalty to convicts in offences such as that of taking up arms against the state, kidnapping with ransom, murder and also in cases of rape. The most recent example in which death penalty was awarded is in the Nirbhaya Rape case that happened in the year 2012.

Now the issue that arises while awarding death penalty is that what constitutes as a case that falls under the ambit of the rarest of rare doctrine. This is because this is a grey area which is left upon the discretion of the court depending on the facts and circumstances of each case. The nature and gravity of an offence are certain ingredients which help to ascertain whether this doctrine would apply or not. With the help of aggravating circumstances judges might feel that death penalty might be awarded but looking at the mitigating circumstances in some cases such penalty is not granted.

Now I would like to refer to the first ever case law in India where such death penalty was awarded and the doctrine of rarest of rare was discussed about. This was the famous case of assassination of Mahatma Gandhi i.e Nathuram Godse v. Crown wherein the three-judge bench granted death penalty to Nathuram who had killed Mahatma Gandhi.

It is often seen that the rarest of rare doctrine is often applied and discussed by the courts in cases involving offences of murder or rape. Few landmark judgements for this are the killing of Indira Gandhi wherein the assassinators were given death penalty in the case of Kehar Singh v. Delhi Administration. They laid down criteria of the doctrine that in instance of a homicide of such eminent personality with hiring of professional killers and making a plan and then breaching public duty. However, in the famous Mattoo murder case raping and then murdering a woman and breaking almost every bone did not constitute something that was rarest of rare and therefore the apex court commuted the sentence from death penalty to life sentence.

The landmark judgement on this doctrine where the court tried to establish guidelines about when death penalty is to be imposed and when the doctrine of rarest of rare is to be applied came first time in the case of Bachan Singh v. State of Punjab. This was a five-judge bench decision wherein the court upheld the constitutional validity of death sentence and also that it passes the substantive test. For the procedural aspect of this the bench referred to section 354 clause 3 of the Code of Criminal Procedure which talks about the special reasons that are to be stated in the judgement while providing for death sentence. The court expanded and defined these special reasons as exceptional reasons which are to be invoked only in exceptional circumstances. Then they pointed out on the mitigating and aggravating circumstances that are to be looked into and weighed while passing such a sentence. They expanded this scope by adding a caveat that not only the nature of the crime is to be taken into consideration but also weightage is to be given to the criminal as well.This can be any possibility of reform and the age of criminal. The court gave a list on this matter and held that this was illustrative. The reason that the bench gave for this was that the punishment was to be given looking at it as a reformative way as these are certain salient features of a progressive society.

Then came the three-judge bench decision in the case of Machhi Singh v. State of Punjab. This although expanded the list of the aggravating circumstances by itemizing it and those which are necessary while awarding death penalty.

But at the same time, this was contrary to the earlier held point about the antecedents of the criminal that are to be taken into consideration while awarding such a sentence. The court in the present case ignored this fact and said that this was not necessary. This position was then later on reaffirmed by a two-judge bench decision by the apex court in the case of Ravji alias Ram Chandra v. State of Rajasthan and said prime importance is to be given to the nature and gravity of the crime so committed and not that of the offender. Now, what this had done was that although these judgements were contrary to the larger bench judgment in the case of Bachan Singh. This was still followed and which led to seven executions in between this time span where the apex court finally in the year 2009 reaffirmed the position of Bachan Singh and held the above two judgements to be per incuriam.

This was done in the case of Santosh Kumar v. State of Maharashtra where the apex court upheld Bachan Singh on the ground that the conduct, character and the antecedents of the accused are also to be taken into account while granting death penalty and using the rarest of the rare doctrine. It also said that life imprisonment is to be a rule and death penalty is to be regarded as an exception and also that public opinion and closure of the victim should not be taken into consideration.

Then there is another important aspect while discussing this doctrine which is that of the minimum of fourteen day period that is to be granted to the accused after all the legal options have been closed. This is done so that he is able to meet his family, execute any will and is in a proper state of mind. Also, that the accused is to be provided with a legal aid till the end and regular mental evaluation of the accused is to be done. All of this was affirmed in the three-judge bench case of Shatrughan Chauhan v. Union Of India.

After discussing all the important cases on this doctrine I would now analyse the current position and whether this is actually followed or not. In the recent and famous case of State of Maharashtra v. Yakub Menon the mitigating factors of the accused were not taken into account to an extent and death penalty was awarded. Therefore, according to me a list should be set out that should talk about the mitigating and aggravating circumstances in which death penalty should be awarded by applying the doctrine of the rarest of the rare cases. In certain offences like Section 303 of the Indian Penal Code mandatory death penalty that was awarded to the accused has now been held unconstitutional in the case of Mithu Singh v. State of Punjab as the mitigating and aggravating circumstances of each and every accused person may differ and so the discretion should be left to the court to decide the sentencing. The choice of such a punishment should be taken with due consideration of all the facts and circumstances and referring to the ratio in Bachan Singh which talks about the current position of this doctrine.

(I have not dealt with the death penalty and the right to life aspect and whether it is violated in this article as I was just discussing the doctrine of the rarest of rare which is applied while giving death sentence or capital punishment)

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