Rarest of Rare Doctrine: Death Penalty

By Satya Vrat Yadav, UPES

Editors Note: The paper attempts to evaluate the rarest of rare doctrine which has been evolved by the Supreme Court for awarding death penalty. It seeks to highlight the current methods of execution in the light of international perspective.


Indian judiciary has pointed out their view regarding death penalty by ruling out in Bacchan Singh vs State of Punjab[i] that the death penalty must be restricted to the “rarest of rare” cases, this view of Supreme Court was very much favored to minimize the use of capital punishment to penalize the criminals, but this view of highest court was contradicted by the legislation by increasing the number of crimes for which capital punishment is awarded.

In Bachan Singh case Supreme Court expressed some outstanding reasons relating wrongdoing and criminal in which (sections 161 at page 738 of the judgment). In section 163, Bacchan Singh further noted: “….in settling the level of discipline or settling on the decision of sentence for different offenses, including one under Section 302 of [the] Penal Code, the court ought not bind its thought “chiefly” or just to the circumstances associated with the specific wrongdoing, additionally give due attention to the circumstances of the criminal”[ii] .

In Santosh Kumar Bariyar vs State of Maharashtra[iii], the Supreme Court got an opportunity to explain this further: “The rarest of rare dictum serves as a guideline in enforcing Section 354(3) and entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an extraordinary burden on the court, in case it selects death penalty as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.”

Constitution clearly states in Article 21 that no person shall be deprived of Right to life unless done following due process of law but Capital punishment denies due process of law. Its imposition is always irrevocable – forever depriving an individual of the opportunity to benefit from new evidence or new laws that might warrant the reversal of a conviction or the setting aside of a death sentence.

When the consequences are life and death, we need to demand the same standard for our system of justice as we would for our airlines. It is the central pillars of our criminal justice system that it is better than many guilty people go free than that one innocent should suffer. Let us reflect to ensure that we are being just. Let us pause to be certain we do not kill a single innocent person. This is really not too much to ask for a civilized society. Since the reinstatement of the modern death penalty, many people have been freed from death row because they were

Therefore through litigation, legislation, and commutation by helping to foster a renewed public outcry against this barbarous and brutalizing institution, we strive to prevent executions and seek the abolishment of Capital punishment.

In addition to the six cases which Bariyar faulted for having followed Ravji’s wrong precedent, it identified another case where the computation of the death sentence is justified. The case is Saibanna vs State of Karnataka[iv] (2005). Saibanna was a life convict. While on parole, he killed his wife and daughter. The Supreme Court sentenced him to death on reasoning which effectively made death punishment mandatory for the category of offenders serving life sentence.

However, the Supreme Court had in Mithu vs State of Punjab[v](1983) already struck down Section 303 of the Indian Penal Code, which provided for mandatory death punishment for offenders serving life sentence. The reason is that if the death sentence is mandatory, then it is meaningless to hear the convict on the question of sentence, and it becomes superfluous to state the reasons for imposing the sentence of death. The ratio decidendi (the legal principle which forms the basis of the judgment) of Bacchan Singh is that the death sentence is constitutional if it is prescribed as an alternative for the offense of murder and if the normal sentence prescribed by law for murder is imprisonment for life. In Bacchan Singh, the court also insisted that a court could impose the death penalty only in the rarest of rare cases when the alternative option is unquestionably foreclosed. (The Ratio Decidendi of a five-judge Bench would be binding on other Benches of the Supreme Court unless overruled by a Bench comprising more than five judges. Bachan Singh was delivered by a five-judge Constitution Bench.)

In Saibanna, the court was doubtful whether a person already undergoing imprisonment for life could be visited with another term of imprisonment for life to run consecutively with the previous one. Rather than resolve this doubt through constitutional means, the Supreme Court opted for the easy way out by imposing the death penalty on Saibanna. In Bariyar, therefore, the Supreme Court declared its own ruling in Saibanna as being inconsistent with both the Mithu and Bachan Singh judgments and, as a result, per incuriam. Of the 13 convicts who have been identified in the judges’ appeal, Bantu’s death sentence was commuted by President Pratibha Patil in June this year. Another convict, Ankush Maruti Shinde, has been declared a juvenile and has been removed from death row. Dayanidhi Bisoi’s death sentence was commuted to life imprisonment by the Governor of Odisha in 2003. President Pratibha Patil commuted the death sentences of Sattan and Upendra in July 2011.

Thus, there are now only eight convicts whose death sentences ought to be commuted in line with the Supreme Court’s judgment in Bariyar. Of these, only Saibanna’s mercy petition was pending in the President’s Secretariat when Pratibha Patil completed her term. It is inexplicable why the Ministry of Home Affairs did not recommend the commutation of Saibanna’s death sentence even though his case was brought to the notice of the President more than a year ago. Going by Pratibha Patil’s illustrious record in commuting the death sentence of 35 convicts in just two and a half years of her five-year tenure, she might have commuted Saibanna’s sentence, too, had the government recommended it.

The mercy petitions of the remaining seven convicts have not yet reached the President. Most of them have got their mercy petitions rejected by the Governors of the States where they are lodged in jails awaiting execution. When Pratibha Patil completed her term on July 24, she left a fascinating record and a legacy that none of her successors can ignore easily. She began with a backlog of 23 undecided mercy petitions from her immediate predecessors and received nine fresh petitions, involving 40 convicts. Of these, she accepted 18 petitions (involving 35 convicts), rejected three (involving five convicts), and passed on 11 undecided petitions (involving 16 convicts) to her successor, Pranab Mukherjee. One of the 35 convicts whose sentences she commuted on June 2 this year, Bandu Baburao Tidake had died on October 18, 2007, while waiting for her decision, but the report about his death apparently did not reach the Home Ministry when it recommended his commutation. It is a moot question whether Tidake would have lived longer had the President commuted his sentence before his death.

But Pratibha Patil’s legacy should not be just seen in quantitative terms. It also has a qualitative dimension. The Home Ministry had often changed its recommendations with regard to the rejection of mercy petitions whenever there was a change of Minister with a new government or with a Cabinet reshuffle and agreed to a review of the pending recommendations with the President. If one Home Minister recommends the rejection of the mercy petition of a convict, it does not follow that his successor would recommend rejection, if reconsidered.

Legally, the President is bound by the advice of the current government and not the one preceding it. Therefore, it can be inferred that she thought it fit to delay decisions on those mercy petitions which the government wanted her to reject. She perhaps thought that if successive Home Ministers had recommended rejection of the same mercy petition, then probably her options were closed.

That Aspect of Rarest of rare doctrine, which needs serious consideration, is interpretation of latter part of the dictum – ‘that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.’ Bachan Singh (supra) suggested selection of death punishment as the penalty of last resort when alternative punishment of life imprisonment will be futile and serves no purpose. Death punishment, as will be discussed in detail a little later, qualitatively stands on a very different footing from other types of punishments. It is unique in its total irrevocability[vi].

In Alok Nath Dutt and Ors. V. State of West Bengal[vii]  this Court after examining various judgments over the past two decades in which the issues of rarest of rare fell for consideration,

Methods of execution for Capital punishment

  • Hanging

Hanging is the method of execution in the civilian court system, according to the Indian Criminal Procedure Code[viii].

  • Shooting

Under the 1950 Army Act, hanging as well as shooting are both listed as official methods of execution in the military court-martial system[ix].

Cons of capital punishment:

Some of the important points due to which capital punishment is opposed by most of the human rights organization in the world are discussed in the text below:

  1. Unlike many other punishments, the loss suffered by death penalty irreversible, but can never ignore the high risk of convicting the wrong person and executing the innocent. Well, such cases are almost very rare when innocents are convicted for a crime which they had not done.
  2. The death penalty is actually deprivation of person from the fundamental right provided by the constitution to the accused, which is right to life.
  3. Death punishment is absolutely more expensive in comparison to other punishments provided by the legal system. These extra expenses are due to additional time takes by the body to actually execute the person for the crime committed by him. And yes this is the fact that if any criminal is given the death penalty, they are also kept in special cabins which causes extra expenses to be suffered by the government.
  4. A murder trial normally takes more time and money than any other trail, and when such trial has chances of the death penalty then courts takes even more time to be sure for the real conditions and these expenses are paid up actually by taxes that are paid by the taxpayers of the country.
  5. Bhagwati has pointed on August 16, 1982, “Capital punishment has a class complexion and is imposed randomly and disproportionately on the poor and uneducated”.
  6. The Cases of death penalty causes extra appeals and consumes more time than normally required deciding a case and this is caused due to endless appeals and additional procedures that are being followed up by the court.

World Wide resolutions and Views

(1)The mandate of the National Human rights Commission established under the Human Rights Protection Act of 1993 provides a lens through which the situation can be better understood- “Murder is abhorrent and demonstrates a lack of respect for human life and so a policy of state killing is immoral. It epitomizes the brutality of violence rather than the reason as the solution to solve social difficult problems.”

(2)The International Convention on Civil and Political Rights, to which India is a party and which has been ratified by 144 states, encourages the abolition of Death Penalty.

(3)The 2nd Protocol to the International Convention on Civil and Political Rights adopted by the United Nations General Assembly with its Resolution on 44/128 of 15th December 1989 is the world’s first pact of universal scope at ending the Death penalty.

(4)Half of the countries in the World have abolished it either by law or in practice.

(5)The General Assembly of the United Nations resolved in 1971, “In order to fully guarantee the right to life provided in Article 3 of the UDHR, the number of offenses for which Capital punishment may be imposed should be progressively restricted, stressing the desirability of abolishing of this punishment in all countries.”


Opposing the death penalty does not indicate a lack of sympathy for murder victims. On the contrary, murder demonstrates a lack of respect for human life. Because life is precious and death irrevocable, murder is abhorrent, and a policy of state-authorized killings is immoral. State can’t kill its public for establishing the law. The main reason why this article talks about the abolishment of capital punishment is that ‘Even the vilest criminal remains a human being possessed of common human dignity’ Therefore one should respect each and every human being.

It epitomizes the tragic inefficacy and brutality of violence, rather than reason, as the solution to difficult social problems. Many murder victims do not support state-sponsored violence to avenge the death of their loved one. Sadly, these victims have often been

Marginalized by politicians and prosecutors, who would rather publicize the opinions of pro-death penalty family members.

The best thing is that countries don’t have any law in which the death penalty is mandatory.

We cannot lose sight of the enormity and gravity of a criminal’s crime. A criminal has to pay for his crime. But as a society, we want to kill the crime and not the criminal. A policy of life imprisonment without the possibility of parole would be a much humane punishment. In order to not make the accused, not a liability to the exchequer, the accused must be made to make Financial Restitution. The punishment should not be degradable so as to brandish the sanctuary of life of a person. The quote well suits the concern-

“Why kill people who kill people to show killing is wrong”.

Recently, in the case of Shatrughan Chauhan v. Union of India, a three-judge bench of the Indian Supreme Court delivered a landmark judgment on the death penalty: holding, in particular, that an excessive delay in carrying out the death sentence was an essential mitigating factor in a plea for commutation. In doing so, it joined jurisdictions such as the United States and the Privy Council and overruled its own 2013 judgment in Bhullar v. NCT.

In Bhullar, the Supreme Court relied upon a concurring judgment in the previous case of Triveniben that appeared to hold that delay need not to be a ground for commutation. The Court drew a distinction between ordinary capital crimes and capital crimes under terrorism statutes (at issue in Bhullar). It held that because of the serious nature of the crimes involved, an excessive delay in processing a death row convict’s mercy petition need not be a ground for commuting the death sentence to life imprisonment. Thus, the Court had effectively held that the nature of the capital crime determined the due process treatment that the convict was entitled to.

In Shatrughan Chauhan, the Supreme Court comprehensively rejected this reasoning. It held that the Bhullar court had overlooked the Triveniben majority judgment’s contrary stance that a delay in carrying out the death sentence was, indeed, one ground for commutation; and thus, the Court held Bhullar to be per incuriam (i.e. decided without reference to an earlier relevant judgment, and thus having no force as precedent). The Court held, on the other hand, that:

“There is no good reason to disqualify all TADA cases as a class from relief on account of delay in execution of death sentence.” (Para 63)

The Court, however, refused to provide a specific time after which a delay would render commutation necessary and held that each case would be adjudicated on its own merits. In essence, the Court thus made delay an essential mitigating factor. This would be considered on the Court’s “balance sheet” inquiry, under which it draws up a list of aggravating and mitigating factors, in order to decide whether or not to award the death penalty in a particular case.

At the heart of the argument is the idea that keeping a death row convict under the shadow of death for years is a form of cruel, inhuman and degrading punishment that no civilized society (whether or not it allows capital punishment) should inflict upon human beings (this short story by Jean-Paule Sartre and this poem by Oscar Wilde perhaps drive home the point most forcefully). The inevitable mental agony that accompanies waiting for inevitable death, demeans individual dignity. Insofar as the Court has interpreted Article 21′s guarantee of the right to life to include treating all individuals with dignity, the judgment reaffirms the humanism that is the foundation the Constitution, and that whatever the crime might have been, human beings continue to have a legitimate claim to be treated with dignity under the Constitution.

The Court further held, referring to a copious body of foreign law and international law, that insanity was a ground for commutation (paras 71 – 78); this is justified by our basic, intuitive notion that persons in a democracy ought to suffer penalties and burdens only to the extent that they are responsible for the actions that they undertake – and that punishment must respond not just to the nature of the crime, but to the ability of the actor to understand or comprehend the nature of his actions.

Coming to the fifteen individual cases before it, the Court applied the delay principle to commute the sentences to life imprisonment. It ended by framing guidelines for the purpose in future, laying down various requirements such as the written communication of the outcome of a mercy petition to a convict and his family, the provision of free legal aid, a post-mortem report to verify whether hanging, as a form of capital punishment, caused undue amounts of pain, and so on.

The Shatrughan judgment is a progressive step in Indian death penalty jurisprudence. Perhaps it is best to leave the last word to the Court, in its penultimate paragraph, suggesting not just that the death penalty should be administered humanely, but that the very idea – say it softly – of State-sanctioned killing of human beings has no place in a civilized democracy:

“Remember, retribution has no Constitutional value in our largest democratic country.”

Formatted on 11th March 2019.


[i] (1980) 2 SCC 684

[ii] Bacchan singh (1980) 2 SCC 684

[iii] (2009) 6 SCC 498

[iv]  2005 (3) SCR 760

[v]  1983 SCR (2) 690

[vi] (2009) 6 SCC 498

[vii]  2006(13)SCALE467

[viii] India Criminal Procedure Code, Ch. XXVII, art. 354 (5), 1973

[ix] Army Act, art. 166 Act no. 46 of 1950, May 20, 1950.

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