The phrase, “rarest of the rare”, is not seen as legalese. Rather, it is one that households across the country are familiar with. This can predominantly be attributed to the controversies that tend to surround death penalty cases. Those in favour of retention of the death penalty often fall back on the argument that it is applied only in the “rarest of rare” occasions to justify keeping it on the statute books. However, a reading of some of the landmark cases on the imposition of death penalty in India demonstrate that even appellate court judges are not wholly clear on how to apply the phrase. Given the stakes, that is certainly a troublesome thought. In this piece I intend to elucidate on that lack of clarity by focusing on the cases that set the foundation for India’s death penalty jurisprudence.
That the courts are inconsistent in sentencing criminals is an often heard complaint in our country. In Jagmohan[i], one of the arguments advanced before the Constitution Bench of the Supreme Court while challenging the constitutional validity of the death penalty was that the wide discretion granted to the judges in the matter of sentencing violated Article 14 of the Constitution – the Petitioner argued that there was a likelihood that two persons founds guilty of murder on similar facts would be treated differently. The Court rejected this argument holding that sentencing depended heavily on the facts and circumstances of each particular case and that what may superficially appear to be an unequal application of the law may not necessarily amount to denial of equal protection. The Court further observed that “the policy of the law in giving a very wide discretion in the matter of punishment to the Judge has its origin in the impossibility of laying down standards” and that “the exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused.”
Jagmohan was decided based on the Code of Criminal Procedure, 1898 which required the court to state reasons for not giving the death sentences and instead punishing a person with life imprisonment in a capital offence.[ii] This position was altered with the passing of the 1973 Code, which placed an obligation on the court to state the “special reasons” for awarding the capital punishment.[iii] With the new law, death sentences were thus made the exception. The requirement of giving “special reasons” was again challenged for being too loosely worded in Bachan Singh.[iv] The Petitioners in that case argued that the constitutional validity of the concerned provision could only be saved by the Court if it clearly defined the types of capital offences that would attract the death penalty. Placing heavy reliance on Jagmohan, the Court rejected this argument holding that a “standardisation or sentencing discretion is a policy matter which belongs to the sphere of legislation.”
The Court then went on to hold that, while determining punishment, due regard must be paid to both the crime and the criminal, and that the relative weight to be given to aggravating and mitigating factors depends on the facts and circumstances of each particular case. Reiterating that life imprisonment is the rule and death sentence the exception, the Court finally held that “a real and abiding concern for the dignity of human life postulates resistance to 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.” (emphasis added) Thus, the phrase was born in the context of the Court’s resolute stand against standardizing cases that would attract the death penalty.
Soon after, the issue of applying the “rarest of the rare” doctrine was given attention to by a three judge bench of the Supreme Court in the case of Machhi Singh.[v] Approaching the issue of sentencing in a somewhat peculiar manner, the Court began by emphasizing on the need for looking at criminal offences from the perspective of the “community as a whole”. It observed that every member of the community owes a debt to the community for the adherence to rule of law, and that therefore the “community” would be justified in sanctioning the death penalty if an individual were to commit a gross violation of the rule of law, for example; murder. The court held that this may be done “in rarest of rare cases when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.” (emphasis added)
The judgment then went on to betray the reluctance shown by the Supreme Court previously with regard to standardisation of cases, by laying down a set of criteria for attracting the death penalty. These included the manner of commission of murder, the motive, the anti-social or socially abhorrent nature of the crime, the magnitude of the crime and the personality of the victim of the murder. As is clear, the criteria are focused on the crime rather than the criminal. Furthermore, the criteria, though clear, presents boxes that are much too easy to tick, and thus it casts the net very wide for determining which cases would fall under the “rarest of the rare” category. This is explained in detail in Swamy Shradhanand,[vi] wherein the Court observed that the translation of the “relative category” of “special reasons” into absolute terms by the Court in Machhi Singh considerably enlarged the scope for imposing the death penalty, particularly when compared to Bachan Singh.
Apart from the fact that it sets the threshold for attracting death penalty too low, the Court’s requirement that “collective conscience” be shocked has proved problematic as it allows for a large degree of subjectivity. What is meant by collective conscience? How does one measure it? Assuming it exists in a tangible form, are our judges really equipped to measure it and choose whether to take a man’s life based on it? These questions are similar to the questions that flow from the use of the phrase, “rarest of the rare”. Both phrases allow judges the opportunity to replace the notion of collective conscience with their individual consciences all too easily.
Pertinently, in May, 2015 the Asian Centre for Human Rights released a telling report titled, “India: Death in the name of Conscience”,[vii] wherein it focused on the manner in which “conscience” is manufactured by judges to justify the imposition of the death penalty. The report drives home the point that in India the question of whether a convict is given the death penalty operates similarly to a lottery, depending largely on which judge decides the matter.[viii] This “judge-centric” (and thus uncertain) nature of adjudication of death penalty was taken notice of by a Division Bench of the Supreme Court in Sangeet v. UOI.[ix] In Aloke Nath Dutta,[x] the Supreme Court extensively laid out past cases in which death penalty had been meted out to show how similar crimes had been treated differently. Unfortunately, the difference in treatment did not arise so much due to a consideration of background of the respective accused persons as due to the judges’ views on the heinousness of the respective crimes.
Uncertainty on law is antagonistic to justice, and inconsistent application of that uncertain law does nothing to salvage that. After 65 years the Apex Court now has a scattered mess of ratio decidendi to reconcile when it comes to the issue of death penalty. This is by no means an easy task. The solution lies in Judges having an in-depth knowledge of all past cases on death penalty and also being acutely conscious of the impact of the expanded interpretations of the Fundamental Rights provisions on sentencing. (This would ensure that legal requirements like assessing the background of the criminals would not be overlooked) Moreover, the Judges must look at concepts like “heinousness” through the lens of the institution they belong to rather than as individuals. Ironically, till such time judgments continue to be inconsistent in the principles they invoke to justify imposing the death penalty, the courts are only strengthening the case for abolition.
i) (1973) 1 SCC 20.
ii) Section 367(5), Code of Criminal Procedure, 1898.
iii) Section 354(3), Code of Criminal Procedure, 1973.
iv) (1980) 2 SCC 684.
v) (1983) 3 SCC 470.
vi) (2008) 13 SCC 767.
viii) The Report makes an interesting comparison between the judgments of Justice Pasayat and Justice MB Shah (both of the Supreme Court); Justice Pasayat confirmed 15 out of the 33 death penalty cases that came before him while Justice MB Shah did not confirm the death penalty for any of the 15 cases that came before him.
ix) (2013) 2 SCC 452.
x) (2007) 12 SCC 230.
NEWS UPDATES FOR OCTOBER- NOVEMBER 2015
- November 30th – NI abortion law 'breaches human rights'
Is Abortion a Human Right?
- November 26 -France : New Emergency Powers threatens Rights
- November 23- Nigeria :Must halt evictions threatening tens of thousands of homeless
- November 20- Cambodia : Political crackdown reaching a ‘dangerous tipping point’
- November 17- Asia: Bullying of LGBT community
- November 13- France: Multiple attacks kill over 100
- November 9- Tunisia: A step forward for Women’s Rights
- November 1- Syria: Armed Groups Use Caged Hostages to Deter Attacks
Ø October 29th - Saudi Blogger Raif Badawi Gets Sakharov Prize, Top E.U. Human Right Award http://www.nytimes.com/2015/10/30/world/middleeast//
- October 23th - Burundi: UN warns of ‘rapidly worsening’ human rights and security situation.
Malawi: Gays Have Right to Health Care – AGhttp://allafrica.com/stories/201510231084.html
- October 21st
- October 27th : Malaysia's human rights have been eroded under PM Najib
- October 16th - Russia: Bill would expand use of force on inmates
- October 1st - Mali: Global Court Takes Up Case of Cultural Crimes in Mali