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This article has been written by Shohom Roy, from Symbiosis Law School, Noida. The article elucidates the doctrine of ‘rarest of the rare’ within the Indian legal system and the anomalies associated with it.


The Indian judiciary has declared time and again that the punishment of life imprisonment is the norm and the death penalty is an exception reserved for the ‘rarest of the rare’ cases. Even in cases of heinous and brutal crimes, the judiciary mandates that the death penalty should be awarded only when the punishment of life imprisonment is vain or insufficient, owing to the nature and circumstances of the crime. In the case of Chhannu Lal Verma vs The State of Chattisgarh (2018), the Supreme Court of India mandated a psychological evaluation to understand the probability and possibility of inducing reformation within the criminal before commuting capital punishment. Therefore, there has been a transition from punitive to reformative judgements in the country. However, these judgements are not merely the application of law to convict or acquit individuals but are messages from the judicial conscience to the society at large. Crimes that would have been so perverse and appalling as to receive the death penalty a few years ago have been common now. Capital punishment under the ‘doctrine of rarest of the rare’ is riddled with flaws due to the procedural delays in Indian courts.

Genesis of the doctrine of “rarest of the rare”

The idea of the rarest of the rare circumstances is not a hard and fast rule. It is a nebulous idea derived from judicial propriety and based on the status of public conscience. The theory of the rarest of rare, unlike other judicial theories, is not rigorously constrained within strict judicial bounds and is mostly motivated by the current status of crime in society.

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In the case of Bachan Singh v. State of Punjab (1980), the doctrine of rarest of rare was established. The matter was brought before the Supreme Court after the High Court of Chandigarh upheld the Session Court’s decision of capital punishment under Section 302 of the Indian Penal Code, 1860. The Supreme Court with a 4:1 majority dismissed the challenges pertaining to the constitutionality of Section 302 of IPC and 354(3) of Code of Criminal Procedure, 1973. The Court said that the six fundamental rights guaranteed under Article 19(1) are not absolute. These rights are subjected to inherent restraints stemming from the reciprocal obligation of one member of civil society to so use his rights as not to infringe or injure similar rights of another. It was held that Section 302 is not violative of both Article 19 and 21 of the Constitution.

It was further held that Section 354(3) of CrPC was not unconstitutional and that the expression “special reason” in the Section means “exceptional reasons” found in the exceptionally grave circumstances of a particular case relating to the crime as well as the criminal. The Apex Court laid down the principle of “rarest of the rare” in awarding the death penalty. It was reaffirmed that for those convicted of homicide, the punishment of life imprisonment was the rule and the death penalty an exception.

Following that, in Machhi Singh v. the State of Punjab (1983), the Court endeavoured to establish guidelines for determining which homicides fell into the rarest of rare category. The Supreme Court laid down the following criteria:

  1. The manner in which the murder was committed:

When a murder is carried out in such a violent, absurd, devilish, repugnant, or reprehensible manner as to arouse the community’s intense and extreme outrage.

  1. Murder Motive:

When a murder is motivated by complete depravity and cruelty.

  1. The nature of the crime is socially unacceptable:

When a murder of a member of one of the lower social groups is perpetrated bride burnings, often known as dowry deaths.

  1. The intensity of the crime:

When the crime is committed in large numbers, such as in the cases of multiple murders.

  1. The personality of the victim of murder:

When the murdered victim is a vulnerable woman or person (due to age or infirmity), a public figure, etc.

Scope of the doctrine

Until 1972, the Indian judicial system viewed life imprisonment as an exception and capital punishment was acknowledged as the norm. In the case of Jag Mohan Singh vs the State of U.P (1972), the Apex Court validated the constitutionality of the death penalty and held that it was not “merely a deterrent but a token of disapproval of crime on behalf of the society”. The judiciary refused to abolish the concept of the death penalty and emphasized the punitive aspect of sentencing. A similar stance was taken in the Bachhan Singh judgement. However, to reduce judicial ambiguity about the usage of the harshest punishment available, certain propositions were put forward.

  •  Capital punishment must be reserved for cases of extreme culpability. 
  • A balance sheet of aggravating and mitigating circumstances of the offender must be evaluated before choosing a punishment for a capital offence.
  • Life imprisonment was to be the norm and the death penalty an exception that may be imposed in cases where life imprisonment proves to be an insufficient punishment or there are no grounds for reformation.
  • Only in cases where there was the occurrence of an uncommon crime, which is unusual to a prudent man or a reasonable mind of the society, for which no alternative punishment would be viable, can be subjected to capital punishment under the doctrine of the ‘rarest of the rare’. 

From this case, it was concluded that the death penalty is constitutional if it is imposed as a last resort for the crime of murder, and the customary sentence for murder is life imprisonment. This indicates that the death sentence can only be applied in the “rarest of rare instances” when no other choice is feasible.

Applicability of the doctrine

When sentencing a convict to death, the general rule is to consider whether the survival of an orderly society necessitates the extinction of the life of the person who committed the crime. The premeditated, cruel, cold-blooded, and heinous nature of a crime, committed without regard for the victim, is often considered when determining whether a case qualifies as “rarest of rare.”

However, some judges like Justice P.N. Bhagwati pointed out the ambiguity and vagueness concerning the interpretation and application of this doctrine. He believed that subjectivity and personal prejudices would play a vital role in interpreting the doctrine and awarding the death penalty and thereby creating a scenario in which individuals would be allowed to live or die according to the judicial outlook. Such arbitrability and reliance on the mindset of the judges would be in contravention with the fundamental rights enshrined in Article 14 and Article 21 of the Constitution. The report of an opinion study conducted by the National Law University Delhi’s Centre on the death penalty with 60 former judges of the Supreme Court of India sheds light on some important aspects of the criminal justice system and capital punishment in India. The majority of the judges believed that the doctrine of ‘rarest of the rare’ was based on categories or types of offences and had no association with the inviability of the alternative life imprisonment as a punishment. The report titled ‘Matters of Judgement’ revealed that despite being used for a long time, there is no uniform understanding of the doctrine within the judicial ranks.  

The effects of procedural delays on the application of this doctrine

The declaration of guilt in a trial and the expediency of such declaration are the pillars of our criminal justice system. While time may not be of the essence in every issue, procedural delays are a major obstacle for crimes that fall within the realm of ‘rarest of the rare’. The doctrine of ‘rarest of the rare’ is primarily concerned with converting society consciousness into judicial conscience. As a result, the implementation of this philosophy varies and evolves. This doctrine’s fluid nature, when combined with procedural delays, results in serious legal flaws in its practical application. In the regular course of events, due to an adversarial system of litigation, the question of guilt flows through layers of judicial scrutiny until it achieves finality. An accused’s guilt takes over 8 to 10 years to reach the level of finality before the Supreme Court, except for high-profile instances. The period is not only exhausting for the litigants, but it also encompasses a major shift in perception of what constitutes the rarest of the rare and guides the judges while deliberating on capital punishment.

Neither the judiciary in its pronouncements nor the legislature through laws has a time limit for the trial of warrant cases. The dynamic nature of the doctrine necessitates expediency. Even the mechanism of fast track courts has been unable to cure this defect, as fast track courts are available at the initial trial level and the ultimate rarity of the case may be decided after years before the Apex Court. Therefore the fast-tracking procedure of trials must be undertaken for heinous crimes until the final decision of the Apex Court so that the standards of using the doctrine of the rarest of the rare does not change due to continuing criminal depravity in the society.  Therefore, the burden of eliminating the underlying injustice hidden in procedural delay rests on the courts who must mould old principles of law to adjudicate on issues that arise out of a complex developing society. Since, with time, heinous crimes get normalised into our society, thereby escaping capital punishment, it is imperative for the courts to either get rid of the doctrine or mould it to suit the needs of the society. The ascertainment of the sociological scenario at the time of the commission of the crime can help determine the applicability of the doctrine.

Article 21 of the Indian Constitution guarantees the right to live with dignity and honour. This right may be restricted subject to the procedure laid down by law. The failure of the criminal system to convict the guilty expediently gives rise to extra-judicial justice in the form of encounters, lynching, etc. Depriving a person of his life can only be justified under the death penalty by a court of the land. The failure to apply the doctrine and award capital punishment by the legal system creates public approval for these defective notions of justice.

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Following recommendations are made for regulating and mitigating the controversies around the doctrine of rarest of rare.

Need for standardized guidelines

A uniform set of guidelines should be established that includes the criteria by which cases can be classified as the rarest of the rare. This may help to remove the fog that has accumulated in the minds of diverse jurists, resulting in confusion.

The choice must be made with care and reason

While the accused has committed a heinous act, it must be kept in mind that, despite the act, if there is any chance that the accused will not cause further harm to society, he should not be sentenced to death.

The death penalty shall not be postponed once it has been imposed

The Supreme Court declared in Smt Triveniben & Ors v. State of Gujarat (1989) that the execution process must be postponed on justifiable grounds so that the accused can receive a fair trial. However, it is recommended that no time be wasted when the death penalty has been imposed. This is not to say that the accused should not have the right to appeal, but it should only be available for a limited time.

The punishment should be proportionate to the crime

The death sentence must be carried out in proportion to the seriousness of the crime committed. Petty offences should not be punished with the death penalty. It must be proportional to the severity of the deed to instil dread in future perpetrators, acting as a deterrent and preventing them from committing such a horrible crime.

The death penalty must not be imposed in haste

Before imposing capital punishment, the court must thoroughly examine all aspects of the case and guarantee that it is not imposed in a hurry.


The rarest of the rare doctrine is the only guiding light for the court when considering whether or not to impose capital punishment; yet, the passage of time modifies not only the standards of rarity but also the entire premise for evaluating the sentencing question. As a result, crimes continue to become normalized in our minds, evading the intended goal of the death sentence. In the guise of procedural delays, the thing which is being referred to as a technical feature of criminal procedure is, on the contrary, a matter of severe injustice.


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