Analysis of the Rarest of the Rare Doctrine

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Rarest of the Rare Doctrine

Written by: K. RAJEEV REDDY


The Doctrine of Rarest of Rare was established after the judgment was delivered in the case of Bacchan Singh v State of Punjab [(1980) 2 SCC 684] where life sentence was regarded as the rule and death sentence as an exception. Even though this doctrine has no statutory definition, it basically provides that death should be awarded to a person as a form of punishment only in cases wherein the functioning of the society in an orderly fashion demands the extinction of the life of the wrongdoer.

While determining whether the doctrine of rarest of rare applies to a particular case the court must take into account various aspects of the crime such as manner of commission of a crime, the motive behind commission of a crime, nature of crime and the criminal, and the magnitude of the crime. Only after considering all of these points should the death penalty be awarded.

Article 21 of the Constitution provides that ‘no person shall be deprived of his life or personal liberty except according to the procedure established by law.’ Thus, in a case where the law demands capital punishment then this shall not be in violation of the Constitution. From 1973 to 1980, the legislative dictate has changed from death sentence being the norm to become an exception, and necessarily to be accompanied by reasons.

Bachan Singh vs. the State of Punjab was a landmark in the escalating debate on the question of the compatibility of the death sentence with Art. 21 of the Constitution. The Supreme Court while holding the validity of the death penalty expressed the opinion that a real and abiding concern for the dignity of human life postulates resistance for taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.

However, the Court declined to formulate any aggravating or mitigating factors as it would fetter judicial discretion but held that a murder “diabolically conceived and cruelly executed” may attract an extreme penalty. It is not possible, the court opined, to feed numerous imponderable circumstances in an imperfect and undulating society. But what is the rarest of rare occasions is the dilemma. What appears as brutal and gruesome, to one judge may not appear to be so to another.

For example, in one case the murder of wife and two children with the motive of leading life with the paramour could not convince Krishna Iyer, J. for the death penalty, while Sen, J. wondered what else could be a fit case for the death penalty than the one at hand. It is submitted that if the difference in perception is so glaring among two judges of the highest court in the country what is the relative position among the very large number of session judges in the country.

Significance and Extent

The doctrine “rarest of the rare cases” is based on Gandhian theory, i.e., “hate the crime, not the criminal”. And thus, from this quotation, we can interpret the significance and extent of the Death Penalty. And if we go through the deep study of it, we find that the court wants to say that the death penalty should be awarded rarely and only in such cases which are heinous, affect humanity, and are brutal.

The problem of the Death Penalty is not very acute in respect of death sentences awarded by criminal courts in cases of the general course of nature because the death penalty is being awarded in very few cases of murder and in most cases of murder the alternative penalty of life imprisonment is awarded.

There is also one other characteristic of the death penalty that is revealed by a study of the decided cases and it is that the death penalty has a certain class complexion or class bias in as much it is largely the poor and downtrodden who are the victims of this extreme penalty. We would hardly find a rich person going to the gallows who has money to hire the services of great talents, has a reasonable chance of escaping the gallows though he has really committed a murder. It is only the poor, the resourceless people who have nobody to support them, who usually go to the gallows. The death penalty in its operation is declaratory. Capital punishment Death penalty as pointed out by warden Duffly is a privilege of the poor.

Keeping the above points in view the Apex Court propounded the doctrine of “rarest of rare”.

In Jagmohan Singh v. State of U.P Capital punishment was challenged to be constitutionally invalid and violating Articles 14, 19, and 21 of the constitution. In this case, the Supreme Court held that in certain exceptional circumstances capital punishment should be awarded keeping public interest, social defence, and public order in mind. However, they also stated that such an award must be given only in exceptional circumstances thereby making it ‘Rarest of Rare’ doctrine.

Judicial Discretion and The Circumstances of The Accused

The decision in Jagmohan Singh v. State Of U.P involved a failed challenge to the constitutionality of the death penalty. Its importance lies in the fact that it highlighted the need for noting ‘special reason’ when imposing death sentences. Bachan Singh v. State of Punjab, which followed, was a landmark decision, which despite affirming the constitutionality of the death penalty diluted the scope of its imposition substantially by introducing the test of ‘rarest of the rare case’. It was held that: “for persons convicted of murder, life imprisonment is a rule and death sentence is an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through the law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

The present position regarding Capital Punishment, as one might suppose of any system of law with pretensions of being considered civilized, is to use it sparingly as possible- i.e. in ‘Rarest of Rare’ cases and this is the system as it stands in India. To have it in the statute book, but to use it as rarely, is the compromise that the Courts, and we as a nation, adopt. In a relatively recent case Panchhi v. the State of U.P, the Court observed: “Brutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the rarest of rare cases.”

The death sentence is not a rule but an exception. Mr M. Hidayatullah, the former Chief Justice of the Supreme Court, observed that the doctrine of the Rarest of Rare’ evolved in Indian Jurisprudence for use specifically with regard to the death sentence is capable of discounting the possible errors and abuse of the sanction. In Machhi Singh v. the State of Punjab, the Apex Court laid down three conditions for the imposition of the death sentence. These were:

Where it is a ‘Rarest of Rare’ case?

When there is something uncommon about the crime that renders ‘Life Imprisonment’ as an inadequate sentence?

Whether the circumstances of the crime are such that there is seen no alternative but to impose a death sentence even after Maximum weightage is given to any mitigating factor?

It is obligatory for the court to give special reasons for awarding the extreme punishment of the death sentence. Also, clear provisions have been laid down by the Supreme Court that authorizes ‘a a mandatory death sentence’ for any offence as unconstitutional.


The doctrine of rarest of rare cases has not been uniformly applied by the courts and strong words, such as,’ diabolical planning’, ‘brutal execution’, ’shocking to judicial conscience’, ’savage nature of crime’ etc. have been used for its application and for the abolition of the death penalty also strong words have been used. The relation between “special reasons” under Section 354(3) and ‘rarest of rare cases’ reasons has not been made clear by the court. All these are not healthy developments so the life of the death penalty is concerned.

The present developments are also leading towards the abolition of the distinction between murder and culpable homicide from a penological point of view. Practically, the death penalty has virtually become non-nest as awarding the death penalty in rarest of rare cases may not have a significant impact.

If in 99% of cases life imprisonment is to be awarded, it means Section 302 is practically providing only one punishment, life imprisonment which is not permissible under Mithu’s ruling. Being aware of this fatal abnormality, the courts have evolved a new variant of life imprisonment, life imprisonment till life without any remission. Thus, notwithstanding anything, the court is not moving away from the crime control model.

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