Rarest of Rare: To Be or Not To Be!

Capital Punishment is a highly emotive and divisive issue. It is an emotive issue because miscarriage of justice cannot be undone, and judicial systems and procedures have proved to be fallible everywhere without exception. It is a divisive issue because jurisprudence has many competing principles to support it; such as Retributive, Deterrence, Utilitarian, State’s or Society’s Security, and so on, but very little evidence to conclusively show that intended outcomes are indeed achieved. Judges are usually conscious, especially in higher judiciary, of the exceptional burden the principal of criminal law -beyond reasonable doubt- places on them especially when considering death penalty. Supreme Court  bench of Y Chandrachud, A Gupta, N Untwalia, P Bhagwati and R Sarkaria enunciated the principle of *Rarest of Rare* in Bachan Singh vs State Of Punjab on 9 May, 1980: ^^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^^. The majority ruling wrote by R Sarkaria upheld the constitutional validity of death penalty for murder provided in Section 302, Penal Code, and the sentencing procedure embodied in Sub-section (3) of Section 354 of the CrPC, 1973. Justice Bhagwati disagreed by saying that Section 302 of the Indian |Penal Code in so far as it provides for imposition of death penalty as an alternative to life sentence is ultra vires and void as being violative of Articles 14 and 21 of the Constitution since it does not provide any legislative guidelines as to when life should be permitted to be extinguished by imposition of death sentence. 
“Rarest of Rare” has since then entered the judicial lexicon and one hears it frequently when cases where section 302 of Indian Penal Code is applied come up for sentencing or review. The law and its interpretation is a dynamic process and both evolve with the society in which they are embedded. Very recently, actually just 2 days ago, the bench of justices KS Radhakrishnan and Dipak Misra held that ^^To award death sentence, the aggravating circumstances (crime test) have to be fully satisfied and there should be no mitigating circumstance (criminal test) favouring the accused. Even if both the tests are satisfied as against the accused, even then the court has to finally apply the rarest of rare cases test, which depends on the perception of the society and not judge-centric, that is whether the society will approve the awarding of death sentence to certain types of crime^^. The judgement here seems to dwell upon what criteria should guide if the test of rarest of rare is satisfied or not, and answers it by saying that not the disposition of the judge but that of the society should decide the case. This may look like a fresh judicial innovation, but seems to have been  anticipated in the Bachan Singh vs State Of Punjab case: ^^Prevalence of such crimes speaks, in the opinion of many, for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval by the society….^^.
Quite obviously judges have to continuously wrestle with their own conscience when they have to consider cases where section 302 of IPC applies and circumstances of a particular case compel them to consider death penalty. Judges have to weigh matters like nature of the offence, how and under what circumstances it was committed, the extent of brutality with which the offence was committed, the motive for the offence, any provocative or aggravating circumstances at the time of commission of the crime, the possibility of the convict being reformed or rehabilitated, adequacy of the sentence of life imprisonment and other attendant circumstances. Each case is unique and so are its circumstances despite similarities with others. There are principles and precedents to guide, but finally how they weigh in on a case before any bench has to be decided afresh by concerned judges. This must be a highly torturous process for every conscientious judge, and pronouncements of judiciary, such as the latest “not judge-centric, but society centric” are reflective of that struggle.

The recent gruesome rape and torture of a woman in a moving bus in nation’s capital seems to have influenced the present observation in the apex court. Many demanded death penalty for all the accused rapists even before the hapless woman had died due to the fatal injuries suffered by her during the barbaric attack. However, the Khap Panchayats in Haryana and many others opposed award of death penalty for rapes. Just today there is a news, Panchayat lets off molester after apology: ^^An alleged molester was let off by police after intervention by Panchayat members at Hansi, some 26 km from here, officials said in Hisar on Sunday. Nand Kishorre Singla, who molested a 28-year-old married woman from Jamawari village, was let off after Panchayat members requested police not to register a case against him on hearing his “apology”, police said^^. The police here seem to have bowed to the *wishes of the society* instead of obeying the laws, which they take an oath to uphold. The trouble is that society is not some homogeneous entity with a common view of everything. Judges’ formulation is undoubtedly an unending effort to keep on refining the principle of “rarest of rare” so as to imbue their decisions with complete impartiality and objectivity. However, each such refinement creates its own quagmire.
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