The first form of punishment under Section 53 of The Indian Penal
Code (hereinafter, 'the IPC') is death penalty. Death penalty as an offence
has been prescribed for various offences under the IPC including the offence of
murder defined under Section 300.
Section 300 however, prescribes two forms of punishment i.e death penalty and
life imprisonment wherein life imprisonment is followed as a rule and death
penalty is to be given only in exceptional cases.
This category of exceptional cases has been defined as rarest of rare
by the Honourable Supreme Court of India (hereinafter,
'the Apex Court'). Thus, death
penalty for the offence of murder under the IPC can be granted only in these
exceptional cases and not otherwise.
However, it is absolutely at the discretion of the court to award death penalty
for the offence of murder in any particular case and thus vagueness and
arbitrariness is bound to arise.
On 20th March, 2020, early in the morning, the four men convicted of gang raping
(name changed), a Delhi physiotherapy intern in December 2012, were
finally hanged till death. Their execution was already deferred three times.
This has again opened the debate over death penalty under Indian laws.
The Apex Court in the landmark case of Bachan Singh v. State of Punjab
down that life imprisonment is the rule and death sentence is an exception. It
would be important to mention the brief facts of the case.
Bachan Singh, in Criminal Appeal No. 273 of 1979, was tried, convicted and
sentenced to death by the Sessions Court under Section 302 IPC, for the murder
of Desa Singh, Durga Bai and Veeran Bai.
The High court confirmed his death
sentence and dismissed the appeal. The advocate for the appellant (the accused), H.K. Puri submitted that in view of the ratio of
Rajendra Prasad v. State of
, the courts below were not competent to impose death penalty on
the appellant. It was submitted by the counsel that neither the circumstance
that the appellant was previously convicted for murder and committed these
murders after he had served out the life sentence in the earlier case, nor the
fact that these three murders were extremely heinous and inhuman, constitutes a
special reason for imposing the death penalty.
Held: In accordance with the majority opinion, the challenge to the
constitutionality of section 302 in so far as it provides for the death
sentence as also the challenge to the constitutionality of section 354(3) of
the Code of Criminal Procedure, 1973 (hereinafter, the CrPC), failed and
There were several circumstances justifying the passing of lighter sentence, as
there were countervailing circumstances of aggravation. The court held that it
cannot feed into a judicial computer all such situations since they are
astrological imponderables in an imperfect and undulating society. Nevertheless,
it cannot be overemphasized that the scope and concept of mitigating factors in
the area of death penalty must receive a liberal and explosive construction by
the courts in accordance with the sentencing policy written large in section
The judges should never be blood thirsty and hanging of murderers has
never been too good for them. Facts and figures albeit incomplete, furnished by
the Union of India, showed that in the past, courts have implemented the extreme
penalty with extreme infrequency:
A fact that attests to the caution as well as
compassion which they have always brought to bear on the exercise of their
discretion of sentencing in such grave matters. It is thus, imperative to voice
the concern that courts, aided by the broad illustrative guidelines indicated by
it, will discharge the onerous function with evermore scrupulous care and human
concern, directed along the highroad of legislative policy outlined in section
354(3) viz., that for persons convicted under Section 302, life imprisonment is
the rule and death sentence is an exception. A real and abiding concern for
dignity of human life concern for the dignity of human life postulates
resistance to taking a life through law's instrumentality. That ought not to be
done except in rarest of rare case when the alternate option is unquestionably
For all the foregoing reasons, the Court rejected the challenge to the
constitutional validity of the impugned provisions contained in Section 302, IPC
and 354(3), CrPC.
In accordance with the majority opinion, the challenge to the constitutionality
of section 354(3) of the CrPC, failed and was rejected.
Certain guidelines were laid down in the case of Bachan Singh:
- Death penalty can be awarded only in the gravest cases of extreme
- The circumstances of the offender along with the circumstances of the
crime have to be taken into consideration.
- When a sentence of life imprisonment seems inadequate having regard to
the nature and circumstances of the crime, only then a death sentence may be
The aggravating and mitigating circumstances have to be balanced.
Aggravating and mitigating circumstances:
The case of Bachan Singh makes a
watershed in sentencing. In making the shift from the crime to the crime and the
criminal, the Constitution Bench in Bachan Singh looked at the suggestions
given by the learned counsel who appeared in the case. These suggestions, when
examined, indicate that insofar as aggravating circumstances are concerned, they
refer to the crime. These are:
- If the murder has been committed after previous planning and involves
extreme brutality; or
- If the murder involves exceptional depravity; or
- If the murder is of a member of any of the armed forces of the Union or
of a member of any police force or of any public servant and was committed
while such member or public servant was on duty; or in consequence of
anything done or attempted to be done by such member of public servant in
the lawful discharge of his duty as such member or public servant whether at
the time of murder he was such member or public servant, as the case may be,
or had ceased to be such member or public servant; or
- If the murder is of a person who had acted in the lawful discharge of
his duty under Section 43 of the CrPC, or who had rendered
assistance to a Magistrate or a police officer demanding his aid or requiring
his assistance under Section 37 and Section 129 of the CrPC.
In so far as mitigating circumstances are concerned, they make reference to the
criminal. These are:
- That the offence was committed under the influence of extreme mental or
- The age of the accused. If the accused is young or old, he shall not be
awarded death penalty.
- The probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to society.
- The probability that the accused can be reformed and rehabilitated. The
State shall by evidence prove that the accused does not satisfy the
conditions 3 and 4 above.
- That in the facts and circumstances of the case the accused believed
that he was morally justified in committing the offence.
- That the accused acted under duress or domination of another person.
- That the condition of the accused showed that he was mentally defective
and that the said defect impaired his capacity to appreciate the criminality
of his conduct.
In the case of Bachan Singh, court noted that death penalty is acknowledged in
the constitution. Also, the new sentencing procedures were held to be in the
nature of safeguards.
The judgment in the case of Machhi Singh and others v. State of
 did not only state the above guidelines but also specified the
mitigating circumstances that could be considered by the court while determining
such serious issues. The apex court in Machhi Singh revived the balancing
aggravating and mitigating circumstances through a balance sheet theory.
doing so, the court sought to compare aggravating circumstances pertaining to a
crime with the mitigating circumstances pertaining to a criminal. It hardly
needs to be stated, with respect, that these are completely distinct and
different elements and cannot be compared with one another. A balance sheet
cannot be drawn up of two distinct and different constituents of an incident.
Nevertheless, the balance sheet theory held the field post Machhi Singh.
When we talk about the principle of rarest of rare, there are
some landmark judgments wherein the courts in India have applied the principle
in coming to a conclusion. In Shankar v. State of Tamil Nadu
, the Supreme
Court observed that it cannot be said that since it may not be possible to
eradicate the crime itself, criminals cannot be awarded death sentence.
When two members of an unlawful assembly went forward to deal with their target
by disposing him of and, on being not able to get him, gunned down his two young
girls whom they chanced to spot on way back, the apex court held that it was not
one of those rarest of rare cases in which death penalty would be
Where a bank clerk in his lure to rob the contents of the strong-room of his
bank killed an officer finding no other weapon on the spot than the stitcher
lying there, the apex court came to the conclusion that the nature of the weapon
showed that the accused acted under a momentary impulse and not in a pre-planned
manner and that the death sentence awarded to him ought to be reduced to life
On the other hand, in the matter of Kehar Singh the Supreme Court held that
the same came under the category of rarest of rare. It wasn't simply a murder.
It was the crime of assassination of a duly elected Prime Minister of India.
There wasn't any personal motivation. The aggrievements was as to an action
taken by the government in the exercise of its constitutional powers and duties.
The security guards who were duty bound to protect the Prime Minister themselves
assumed the role of assassins. It was a betrayal of its worst kind. It was a
murder most foul and senseless. Those who executed the plot and those who
conspired with them therefore, all fell in the category of rarest of rare
Death penalty is not awarded in cases where the origin of the transaction is not
clear and because of involvement of a number of persons it is not possible to
attribute a particular act to a particular accused.
Where the accused attacked and caused injures to all members of his brother's
family including children and others as a result of which four died but it
seemed that the accused was in a highly disturbed mental state, the murders
being not committed for personal gain, the court said that the accused would not
be a menace to the society if allowed to live and there being no direct evidence
to connect the accused with the offence, death sentence could not be awarded.
Where the accused with the intention to rob the passengers, sprinkled petrol in
a bus and set it ablaze, not allowing the passengers to escape resulting in
death of 23 passengers, the case fell within rarest of rare cases and,
therefore, the death penalty awarded to them was confirmed.
In matters arising out of bride-burnings for dowry demands, the Apex Court has
suggested that the normal sentence for murder now is life imprisonment and not
death and court has to record special reasons for awarding death sentence in any
given case, which means special facts and circumstances of the case justifying
the extreme penalty and though a balance-sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the mitigating circumstances
have to be accorded full weightage, in the case of death due to bride-burning, a
death sentence may not be improper.
Where the dying declaration was the chief source of evidence against the accused
husband and it was found to be full of falsehood, acquittal came naturally to
him. Circumstantial evidence showed that accused husband burnt his wife to
death. Post mortem report was that death was due to shock and toxsemia due to
fire burns. The circumstances suggested that there was no suicide, nor was it an
accident. There was also evidence of cruelty for bringing small dowry and
extra-marital relations. The accused had a strong motive to get rid of her.
There was, hence, no error in conviction under Sections 302, 304B and
498A. The court listed factors which would show suicide, or accident.
The victim, a 16-year old girl, was alone in the house and preparing for her
exams. The two accused were working in the house. They took advantage of the
situation. They raped her, strangulated her by her undergarments and caused
injuries to her with a sharp weapon. They threw the body in a septic tank in the
backyard, which showed a disregard of respect a human dead body. No mitigating
circumstances were pointed out for reducing sentence. The court said that it was
rarest of rare cases, in which capital punishment was rightly awarded to both
It was established on the basis of circumstantial evidence that
the accused raped and killed two minor girls below the age of 10, convicted
earlier for a simple rape. Death sentence was awarded. The High Court and
Supreme Court confirmed it being in the rarest of rare category.
It was a case of atrocities committed by members of an upper caste on persons
belonging to lower caste. Eighteen members belonging to upper caste raided as do
coils in the houses of lower castes. Eight persons were tied with ropes, thrown
into river boats, killed there and then abandoned to the care of area of strong
currents of river. Most of the bodies could not be recovered. The trial court
convicted all eighteen persons. The High Court acquitted them all. The Supreme
Court gave benefit of doubt to the twelve persons.
An unlawful assembly came into being with the object of finishing persons about
whom the rioters believed to be responsible for defilement of a mosque. The
accused joined the assembly and caused death of one person. Death sentence
imposed on him was commuted to imprisonment for life.
An educated woman was involved in the assassination of the former Prime Minister
of India, Mr. Rajiv Gandhi. She was one of the main accused persons and without
her support the commission of the offence would not have been possible. The mere
fact of her being a woman who delivered a child while in custody was not
considered to be a ground for not awarding her death penalty.
The victim was shot dead while leaving the court premises. Father and brother
who accompanied the deceased became the natural witness. The accused were held
liable to be convicted for murder. But death penalty was reduced to life
In the landmark case of T.V. Vatheeswaran v. State of Tamil Nadu
, a two
judge Bench of Supreme Court considered whether the accused, convicted for an
offence of murder and sentenced to death, kept in solitary confinement for about
eight years was entitled to commutation of death sentence. It was held that
delay exceeding two years in execution of a death sentence should be considered
sufficient to entitle such person convicted to invoke Article 21 and demand the
quashing of the death sentence.
However, a three-judge bench in Sher Singh v. State of Punjab held that
though prolonged delay in the execution of death sentence is unquestionably an
important consideration for determining whether the death sentence should be
allowed to be executed, no hard and fast rule that delay exceeding two years in
the execution of a sentence of death should be considered sufficient to entitle
the person under sentence of death to invoke Art. 21 and demand the quashing of
the sentence of death can be laid down as has been done in the case of Vatheeswaran.
In Javed Ahmed v. State of Maharashtra
, re-iterated the proposition laid
down in the case of Vatheeswaran and doubted the competence of the three-judge
bench to overrule the Vatheeswaran case
. The conflicting views were finally
settled by the Constitutional Bench in Triveni Ben v. State of Gujarat
overruled the judgment in Vatheeswaran holding that undue long delay in
execution of the death sentence will entitle the condemned person to approach
the Supreme Court under Article 32 but the court will only examine the nature of
delay caused and circumstances that ensued after sentence was finally confirmed
by the judicial process and will have no jurisdiction to reopen the conclusions
reached by the court while finally maintaining the death sentence. Court,
however, may consider the question of inordinate delay in the light of all
circumstances of the case to decide whether the execution of the death sentence
should be carried out or should be altered into imprisonment for life.
The Principle Of Rarest Of Rare – A Critical Analysis
As per Justice A.S. Anand and N.P. Singh, the measure of punishment in any case
must deepen upon the atrocity of the crime, the conduct of the criminal and the
unprotected and defenceless state of the victim. The imposition of appropriate
punishment is the manner in which the courts respond to the country's cry for
justice against the criminals. Justice demands that courts should impose
punishment benefitting the crime so that the courts reflect public adherence of
the crime. However, it is said that capital punishment is vengeance rather than
retribution and, as such, is a morally dubious concept. And the anticipatory
suffering of the criminal, who may be kept on death row for many years, makes
the punishment more severe than just depriving the life of the criminal.
Deterrence is most effective when the punishment happens soon after the crime.
However, in a country like ours where cases take years to be decided and more so
in cases of death penalty wherein there are many more procedural requirements
and mercy petitions following the award of death sentence, the execution of
sentence is prolonged further. Only recently the convicts in the Nirbahaya case
were hanged to death after seven years of commission one of the most heinous
crime possible, easily falling under the category of rarest of rare case. It
seems more sensible wherein such a punishment is abrogated in totality instead
of this useless trauma to the family of deceased as well as the accused and
their family. Also, nobody knows whether the death penalty deters more than life
Capital punishment, of course, does not rehabilitate the prisoner and bring them
back to the society. But there are several examples of people condemned to death
taking the opportunity to repent, express remorse, and often experience
spiritual rehabilitation before execution of death sentence. It is said that
Amir Ajmal Kasab, the terrorist responsible for the 26/11 Taj attack in Mumbai,
felt something similar days before his execution. Thomas Aquinas noted that by
accepting death penalty, the offender was able to expiate his evil deeds and so
escape punishment in next life
Another argument advanced in favour of death penalty is that it deters the
offender from re-offending. However, sadly that cannot be said about judicial
system in this country which to a great extent is motivated by political and
other powerful influence. Such criminals who are likely to re-commit a crime or
any other heinous crime mostly have powerful background backed by political and
money power. They believe that nothing can touch them. That they are above the
law. That they will never be held accountable.
Sadly, it is true to a great
extent. The recent acquittals in highly politically motivated cases despite the
gravity of the crime which could easily fall under the category of 'rarest of
rare', prove so. Ultimately, in such cases of vague discretion, arbitrariness
does creep in and judges ultimately are human beings. They have a future after
retirement. They have families. They also fear such people. Hence, it would be
absolutely correct to suggest that such political convictions are free from any
bias and are just, fair and reasonable.
Another argument is that death penalty provides the family with a closure. This
is the vaguest argument possible in support of death penalty and even vaguer in
support of the principle of 'rarest of rare'. This invariably means that the
emotions and grief of families of those victims wherein death penalty is awarded
to convicts are more precious to the judiciary than those who aren't awarded the
In many countries, plea bargaining is used which is a process wherein a criminal
receives a reduced sentence in exchange for providing assistance to the police.
Where the possible sentence is death, the prisoner has the strongest possible
incentive to try to reduce his sentence, even to life imprisonment without the
possibility of parole, thus giving police a useful tool. This is a weak
justification and similar to the arguments that torture is justified as it would
be a useful tool for police and other such authorities.
The constitutional validity of death penalty in India was upheld in the landmark
case of Bacchan Singh (Supra). This was the very case wherein the principle of
rarest of rare was laid down by the Supreme Court of India. However, the scope
of this phrase was left undefined. The ratio decidendi of Bacchan Singh case is
that death sentence is constitutional only if it is imposed in rarest of rare
cases and when the alternative option is excluded. Though in the case of Macchi
Singh, the court tried to lay down a criterion for assessing whether a crime
fell in the category of 'rarest of rare' case or not, the vagueness of these judgements leave the principle of awarding death penalty in India opaque and
In Prajeet Kumar Singh v. State of Bihar
, the court ruled exactly on
what would constitute a rarest of rare case
. The court held that a death sentence
would be awarded only, when a murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as to arouse intense and
extreme indignation of the community.
A strong criticism arose from Justice Bhagwati who in his dissenting opinion
cautioned saying, such a criterion would give rise to a greater amount of
subjectivity in decision making and would make the decision whether a person
shall live or die dependent on the composition of the Bench. He contends the
fact that life of an offender is based on what a Bench deciding the particular
case thinks, is clearly violative of the fundamental rights under Article 14 and
21 of the Indian Constitution.
The vagueness of awarding death penalty can be gathered from another example. In
the case of Laxman Naik v. State of Orissa
, the court ruled that a
cold-blooded and brutal murder of a girl of very tender age after committing
rape undoubtedly fell under the category of rarest of rare. But in Kumudi Lal v.
State of Uttar Pradesh
 which was also a case involving rape and murder of a
fourteen-year girl, the court refused to confirm death penalty.
After the 2013 amendment to the offence of rape in India, the maximum punishment
for the offence of rape has been enhanced to death penalty now. However, the
provision punishing the offence of rape in India runs collaterally with a
presumptive provision under the Evidence Act. Even after the 2013 amendment
wherein the provision of Section 376E was inserted into the IPC, the presumptive
provision under the Evidence Act remains as it is, without making any exception
to the new provision.
Thus, what can be inferred is that on the basis of a
presumption death penalty can be awarded now. This makes it even more vague and
An eye for an eye leaves the whole world blind
, said Mahatma Gandhi.
Retributive theory of punishment which is the basis of death penalty is against
this principle of Mahatma Gandhi. Abolition of death penalty ay bring an end to
the growing number of beastly crimes in India as it can be clearly seen that the
presence of such a punishment is certainly not curbing them. Murders and rapes
are not ending despite such a provision.
The cases of Unnao, Kathua
and Delhi in
2017 are clear examples. Also deterrence which was one of the basis for this
punishment cant be seen among like-minded criminals and crimes are still
happening. The principle reason for it is the vagueness in which death penalty
is awarded and hence doing away with it could possibly be the best solution to
end this arbitrariness.
Rarest of rare is a principle that was brought in to make it easy for the
judiciary to choose between death penalty and life imprisonment as a punishment
for the offence of murder under Section 302.
However, with the severity of the growing crimes in country, the prescription of
the penalty for other offences now, the arbitrariness involved and the absence
of any checks and balances has made it a principle that has lost its soul and
Hence, it can be said that the best possible way to end this arbitrariness is to
do away with the punishment of death penalty in totality.
Written By: Syed Aatif
- The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
- A.I.R. 1980 S.C. 898 (India).
- (1979) 3 S.C.R. 646 (India).
- 302. Punishment for murder- Whoever commits murder shall be punished
with death, or [imprisonment for life], and shall also be liable to fine.
- 354. Language and contents of judgement- (3) When the conviction is for
an offence punishable with death or, in the alternative, with imprisonment
for life or imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded, and, in the case of sentence of death, the
special reasons for such sentence.
- The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974
- Supra Note 2.
- CJI Y.V. Chandrachud, J. P.N. Bhagwati, J. R.S. Sarkaria, J. A.C. Gupta
and J. N.L. Untwalia.
- Supra Note 2
- A.I.R. 1983 S.C. 625 (India).
- Sangeet v. State of Haryana, A.I.R. 2013 S.C. 447 (India).
- (1994) 4 S.C.C. 478 (India).
- Allaudin Mian v. State of Bihar, A.I.R. 1989 S.C. 1456 (India).
- Laxmi Raj Shetty v. State of Tamil Nadu, A.I.R. 1988 S.C. 1274 (India).
- Kehar Singh v. State (Delhi Admn.), A.I.R. 1988 S.C. 1883 (India).
- Jagdish v. State of M.P., 1992 Cr.L.J. 981 (India).
- III Addl. Sessions Judge, Guntur v. G.V. Rao, 1996 Cr.L.J. 703 (A.P.)
- Lichhamadevi v. State of Rajasthan, (1988) 4 S.C.C. 456 (India).
- State of Rajasthan v. Yusuf, A.I.R. 2009 S.C. 2674 (India).
- The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India),
- The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India),
- Vijay Kumar Arora v. State (Govt. of NCT of Delhi), (2010) 2 S.C.C. 353
- Molai v. State of Madhya Pradesh, A.I.R. 2000 S.C. 177 (India)
- Mohan Anna Chavan v. State of Maharashtra, (2008) 7 S.C.C. 561 (India).
- State of Uttar Pradesh v. Ram Sajivani, (2010) 1 S.C.C. 529 (India)
- Lokeman Shah v. State of West Bengal, 2001 Cr.L.J. 2196 (S.C.) (India).
- State of Tamil Nadu v. Nalini, A.I.R. 1999 S.C. 2640 (India).
- State of Uttar Pradesh v. Sikandar Ali, A.I.R. 1998 S.C. 1862 (India).
- A.I.R. 1983 S.C. 361 (India).
- K.P. Mohammed v. State of Kerala, (1985) 1 S.C.C. (Cri) 142 (India).
- A.I.R. 1983 S.C. 465 (India).
- A.I.R. 1985 S.C. 231 (India).
- A.I.R. 1989 S.C. 1335 (India).
- Appeal (Crl.) 1621 of 2007 (SC).
- (1994) 3 SCC 381.
- (1999) 4 SCC 108.
- The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India),
- The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India),
- The author is a practicing advocate at the Central Administrative
Tribunal (CAT), Delhi High Court and the Supreme Court of India.