A trial court’s verdict in Kolkata’s RG Kar hospital rape-murder case has once again brought to the fore the concept of ‘rarest of rare’. The court sentenced the convict to a life term instead of giving the death sentence that the Central Bureau of Investigation had demanded and the victim’s family had hoped for. The judge turned down the plea for capital punishment on the ground that, in his opinion, the crime did not fall under the ‘rarest of rare’ category.

India’s criminal laws do not define ‘rarest of rare’, and the application of the doctrine has been left to the discretion of judges, thus resulting in debates and discussions on the issue. The extreme caution exercised on the issue is under-standable, because unlike other forms of punishment, capital penalty cannot be reversed once it is executed. When a court orders the execution of a person, it has to be convinced beyond doubt that there is no alternative but death to the convict for the grievous crime he (or she) has committed.

The matter is more complicated than it appears. For instance, in ‘aggravating circumstances’ the court would likely award capital punishment, but if it feels that there were ‘mitigating circumstances’ in the commitment of the crime, it would most likely avoid the death penalty and instead settle for a life-term verdict. In both cases, though, the opinion of the judge(s) will come into play because no statutory definition has been provided in the penal laws. It wasn’t there in the Indian Penal Code and it is not there in the (now in operation) Bharatiya Nyaya Sanhita (BNS).

There is further confusion. One judge may pronounce that a particular case does not meet the ‘rarest of rare’ requirements, while another could in the very same matter find that it does. The reverse may also be true. To avoid the co-nundrum, some rights activists have demanded the abolition of the death pen-alty. They also offer a ‘humanistic’ view—an eye for an eye will make the world go blind. This is commendable idealism, but it ignores another argu-ment: What right does a person, who brutally kills another without any miti-gating circumstance, have to live? Imagine acts of terrorism in which many innocent lives are snuffed out, and the perpetrators are merely sentenced to life in prison. Is the punishment proportionate to the crime committed? Obvi-ously not. Whatever the argument, however, the death penalty remains as of now in the statute books—and as long as it does, it will be applied.

The ‘rarest of rare’ concept was first enunciated in 1980, when the Supreme Court, in the Bachan Singh versus State of Punjab case, pronounced that life imprisonment was the rule and death penalty an exception. At the same time, in a majority verdict, the court stated that there were sufficient safeguards to ensure that the death penalty was given only in fit cases. Bachan Singh had been given capital punishment by the Sessions Court, and the verdict was up-held by the High Court. The majority verdict also upheld the constitutional va-lidity of Section 302 of the Indian Penal Code. The minority verdict (of one dissenting judge) struck down the constitutional validity of the Section insofar as it provided for capital punishment.

The court elaborated on the ‘rarest of rare’ concept in the Machhi Singh and Others versus State of Punjab in 1983. A series of feuds between two families in 1977 resulted in the loss of 17 lives, and Machhi Singh and a few others were held guilty for the crime. The trial court sentenced him (along with three more) to death. The High Court and subsequently the Supreme Court upheld the verdict. In doing so, the apex court laid down the following factors that the courts must consider in awarding capital punishment:

Manner of committing murder: When it is extremely cruel, diabolical, rebellious or reprehensible—so as to arouse deep outrage in society.
Motive for murder: When it is a cold-blooded act, thought of and de-vised beforehand for selfish gains, or it’s a killing for monetary reward.
Socially heinous nature of crime: When it involves dowry deaths, murder of a person from the backward class.
Magnitude of crime: When the proportion of the crime is high—for example, a case of multiple murders.
Personality of victim: When the murdered person is an innocent child, a helpless woman or an elderly or disabled person.

In short, the courts must study the crime committed from various angles be-fore deciding on capital punishment. That said, the power of discretion re-mains with the judges; this was underlined earlier in the Dharma Bhagare ver-sus the State of Maharashtra, relating to an incident of communal violence, in 1970. Here, the Supreme Court upheld the convictions and the death sentence imposed on Bhagare after examining the sequence of events and the propor-tion of crime (three innocent lives were lost in the riot). The apex court said that the death penalty was justified given the severity of the crime, the motive (of fostering religious animosity) and the impact the crime had on the victims and the society at large.

The mitigating circumstances can be many. Take, for example, the case of a person who breaks into a house with the intention of theft. He encounters re-sistance from a resident and stabs him to death. The crime is heinous without doubt, but a court may decide that the act of murder was committed in a state of panic. That being a mitigating circumstance, the criminal may escape the noose. But if he kills more than one member of the household, would panic still be a mitigating circumstance?

If a murder is committed by a youth, would that be a mitigating circumstance, given his young age? In some cases, the court held that to be the case, in others age was not considered to be a mitigating factor. Even in the case of minor convicts, it is left to the courts to decide if the culprit should be tried in a regular court or the minor should be sent to a juvenile home.

The killer’s mental state would also be under consideration to determine if a mitigating circumstance existed. Murder committed by a person with an un-sound mental condition would most likely not attract the death penalty. Merri-am-Webster defines mitigating as ‘a circumstance or factor relating to an of-fence or defendant that does not bear on the question of culpability but that re-ceives consideration by the court especially in lessening the severity of a sen-tence’.

Lawyers arguing against the death sentence might have an array of mitigating circumstances to present to the court. They can seek to present a ‘positive’ image of the defendant—no prior criminal record, devoted to family, engaged in charitable activities, etc. The idea is to tell the court that the act of murder was an aberration and not in line with the overall character of the defendant; the person therefore deserves a second chance. Lawyers can resort to ‘nega-tives’ as well—the defendant was forced to commit the crime due to financial or other hardships, had grown up in an abusive environment (encountering it at home or in society), suffered from addiction to alcohol or drugs, etc. In such cases, the plea would be that the convict deserved not the death penalty but compassion and effective treatment that could help in the process of individu-al reform.

The last word on the ‘rarest of rare’ doctrine is yet to be said.

(The paper is the author’s individual scholastic articulation. The author certifies that the article/paper is original in content, unpublished and it has not been submitted for publication/web upload elsewhere, and that the facts and figures quoted are duly referenced, as needed, and are believed to be correct). (The paper does not necessarily represent the or-ganisational stance... More >>