Should Rarest of Rare doctrine be abolished?

Recently, again an accused is awarded a death sentence by a Mumbai Sessions Court“for raping and killingthe techie, under IPC Section 302 (murder), Section 376 (rape) and Section 201 (causing disappearance of evidence of offence)”; terming it as the ‘rarest of rare’ cases. I am unable to understand the exact application of what the ‘Rarest of Rare’doctrine is and how it is applied each time. The doctrine ‘Rarest of Rare’ was first articulated in 1980 in the Bachan Singh case. Then in 2008, the Supreme Court judges, in the Prajeet Kumar Singh

  1. State of Bihar,had ruled exactly on what would a rarest of rare case constitute.Court said 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”.There is no statutory definition of what rarest of rare means but the controversy to this doctrine arises each time the Court awards death penalty and the debates go on and on. There are a number of cases in which the crime is same but the punishment differs. There are judgments in which the accused has committed eitherrape or murder and has been awarded death penalty but also there are cases in which the accused has committed rape as well as murderbut then also he has not been awarded death penalty. It is hard for me to find out what led to the variation in punishment in such cases. Is it the ‘Crime’ or the ‘Criminal’ or the ‘Judge’?Bachan Singh considered all the circumstances relating both to the criminal and the crime, whereas Machhi Singhvs. State of Punjab focused only on the crime and not the criminal. What makes the Judge to decide whether the case falls within the rarest of rare case? Does the age of the victim cold be a deciding factor to make such categorisation of sentence or not? Because in one case the Bombay High Court confirmed a double-life and double-death sentence for rape and murder of a 2 year old girl; whereas in Mohd. Chaman vs. State (NCT of Delhi), the Supreme Court commuted the death sentence for rape and murder of a 1 year and 6 months old girl to life sentence. Also there are different assumptions ofthis doctrineas to when the collective conscience of society is shocked; which differs from judge to judge.

I do not want to go into the issue under Article 21 that, “Does death penalty violates the fundamental right of ‘Right to Life”? The judgments relating to Arbitrariness in sentencing the person to life imprisonment or to death sentence in similar crimes is, according to me, violating the Right to equal protection of the laws guaranteed under Article 14 of the Indian Constitution. Reasonable discrimination among the citizens can only be made by the State by passing a proper law but here judiciary has stepped in to take this burden on its own shoulder, which is leading a very subjective interpretation of the doctrine created by it.

With the time, the doctrine which was supposed to be a principle based doctrine has now turned into a Judge-centric doctrine. If Judiciary still wants to keep this doctrine then they need to ascertain specific elements and circumstances on the basis of which the doctrine would completely rest. I feel that it is high time for the legislature to step in and clear the fog surrounding this doctrine because judiciary is giving a lot of subjective interpretation and in the course of that it is formulating itself as a “Super-legislative”.


Submitted by :

Aman Garg
Jindal Global Law School

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