Every society in human history, has sought the obedience of each of its members to certain laws. The most powerful tool each of them has had at its disposal to achieve that end has been fear. And the greatest fear being the fear of the final end, each of them has used death a penalty to deter men from violation of the most sacred of these laws.
But there has always existed a struggle between those who fought for abolition of death penalty and those who fought to continue this practice believing it to be essential to maintaining law and order. With just 58 states still retaining it as a legal punitive measure, it is clear who is winning.
However, when it comes to India, there is little political and public support for the abolitionists. Instead incoherent public outrage erupts every time the judiciary seems to show leniency towards perpetrators of heinous crimes. Therefore the more prominent issue is, not whether the death sentence should be done away with, but how often and in what circumstances the punishment should be awarded. And towards promoting awareness and the formation of a coherent public opinion capable of influencing policy on this issue, an attempt has been made to explain the principle of “rarest of rare” which is the basis of sentencing in matters of crime punishable with death.
The reasons for birth of “the rarest of rare” –
India, like any other country has its share of crime, reported and covered by the media. But not all cases of crime, even where the offence committed is essentially the same, are covered in the same manner and reacted to in the same way by the people. For there exists a difference in the brutality and nature of a crime, the circumstance of its commission, the person(s) it was committed by and the certainty about the guilt of the accused. The variations in these factors warrant different treatment of the various cases of the same offence.
Due to this reason, impossibility of laying down standards is at the very core of the criminal law as administered in India(1). The Indian Penal Code has been drafted in a way so as to invest the judges with a very wide discretion in the matter of fixing the degree of punishment. For every offence the act provides not a fixed punishment but only an upper and/or a lower limit to the quantum of punishment.
Similarly death penalty is prescribed as an alternative to life imprisonment and discretion is given to the court to decide the cases in which it should be awarded. So a matter of grave concern is how this discretion is exercised and what circumstances justify the use of it in favour of death penalty.
The Constitution of this country provides the fundamental right to equality before law, under Article 14. This is an obligation on the state to treat, every person equally (subject to reasonable classifications). In the matter of deciding sentence, this responsibility translates to ensuring that the judiciary exercises its discretion on the same standards and considerations in every case. However, besides the recording of special reasons(2) there is no other legislative principle to guide the courts in the exercise of this discretion in cases of crimes punishable with death. This lack of an objective standard meant that the subjective perception of crime of individual judges determined whether an accused got death sentence or life imprisonment in cases of murder. Thus, the fate of an accused depended to a very large extent upon who judged him/her, for in the same case, where for one judge death penalty was deserved, for another life imprisonment was sufficient, a situation clearly unfair and in violation of Article 14.
To replace judge centric sentencing with a principled sentencing procedure in order to save death penalty from being challenged as unconstitutional, the Supreme Court of India gave birth to the principle of the “rarest of rare” in the case of Bachan Singh v. State of Punjab(3). This principle not only sought to ensure that individuals are put on an equal pedestal to be judged but also brought death penalty in conformity with the Right to Life embodied in Article 21 of the Constitution as will be explained below.
Rationale behind the principle and its understanding –
A layman’s understanding of “rarest of rare” being a class/category of exceptional cases in which the court pronounces death penalty for offence punishable with death, is not wrong. But it is insufficient without an understanding of when a case is considered to fall in this category. For that, it is important to realize the rationale behind this principle.
Article 21 of the Constitution of India provides the right to life to all people, embodying a real and abiding concern for the dignity of human life which postulates resistance to taking it through law’s instrumentality. Depriving a person of his/her life according to procedure established by law is an exception to this right and it is a settled rule of interpretation of law, that exceptions must be construed narrowly. Add to this the requirement under Section 354(3) of the CrPC of stating special reasons for awarding death, the legislative policy of making death an ‘exceptional’ penalty becomes clear.
In light of these beacons of legislative policy, the SC laid down that the extreme penalty of death can be inflicted only in “gravest cases of extreme culpability”. Life imprisonment is the rule and death sentence is the exception. The use of this exception will only be justified “when the alternative option is foreclosed“. This oft quoted phrase is at the crux of the principle of the rarest of rare. In the simplest terms, it means that only when the facts of the case make the alternative of life imprisonment completely meaningless, can death sentence be pronounced.
To understand when life imprisonment is rendered pointless, it is important to contrast the nature of death penalty and life imprisonment. Incarceration from society serves not only the purpose of deterrence and retribution, but also of reformation. The nature of the penalty is such that it can be revoked if it is felt that a convict has been reformed and is not a threat to society anymore. Death penalty on the other hand is irrevocable and there is no scope for reformation/rehabilitation.
Thus, the alternative option of imprisonment can be said to be foreclosed only in those cases where there is absolutely no possibility of reformation. Only when the court is satisfied the convict will always remain a threat to society and cannot be corrected, can it use this “exceptionally narrow opening” of death penalty, ensuring there is no harm in future. Due to this reason the term “rarest of rare” has been used.
How and when can it be said whether a convict is beyond reformation?
The judicial precedents on this question are numerous and cannot be discussed in their entirety here. The basic necessary requirement is to dispassionately weigh the circumstances aggravating the culpability of the convict against those mitigating it to judge the reformability of a convict. It is here that the discretion of the court is to be exercised. These circumstances not only include circumstances relating to the crime but also to the criminal. The heinousness or brutality of a crime is not the only ground for consideration but only one of the many. Never can the circumstances of the criminal that were a factor in his/her committing the crime, such as motivation of the convict, state of mind, social life, economic condition, etc, be discounted at any cost as this information is crucial in deciding whether the criminal will be a menace to the society in future and the probability of his reformation. For example – If cold blooded murder was committed by a person with no criminal record due to some extraordinary mental pressure, or under the impression that he was morally correct in his act, it can be said there is scope for reformation.
When a state has the power to take away life, the responsibility of the state with respect to it cannot be understated. As citizens who shape this country’s policies, this responsibility extends to us in the form of a duty to be conscious of this power and to debate how it is to be used. The basis on which this power is exercised, as it exists today, has been explained through this post, to stimulate that debate. No matter what school of thought you belong to, humanitarian supporting abolition or a conservative disciplinarian espousing a more liberal use of death penalty, armed with an understanding of this principle one can begin to intelligently analyze and criticize the approach of the judiciary.
(1) Jagmohan Singh v. State of U.P., [(1973) 1 SCC 20]
(2) Section 354(3) of the CrPC
(3) Bachan Singh v. State of Punjab [(1980) 2 SCC 684]
Amity Law School (GGSIPU), New Delhi
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]