Rarest of Rare Doctrine: Evolution and Validity

“The real question of capital punishment in this country is: Do we deserve to kill?” – Bryan Stevenson

INTRODUCTION

Capital punishment has been an issue of debate in India, both in the legal field and in the moral landscape. It was introduced by the Supreme Court in Bachan Singh v. State of Punjab (1980). This doctrine restricts the death penalty to the most heinous crimes, ones that “shock the collective conscience of the society.” It mandates that the death penalty should only be used in the rarest of rare cases, or the most exceptional cases, where alternative punishments are inadequate. The application of the doctrine is often considered subjective and open to debate. This is evidenced by the two cases: R.G. Kar Medical College Rape and Murder Case (2024) and Sharon poisoning case (2022). 

In the rape and murder of a 2^nd year postgraduate doctor in R.G. Kar Hospital, the convict was awarded Life Imprisonment, where the Additional district and sessions judge said, “this doesn’t fall into the category of rarest of rare” crimes. Meanwhile, in the Sharon murder case, the court awarded the death penalty to Sharon’s partner, who was convicted of poisoning of Sharon Raj, who succumbed to multiple organ failures over 11 days. Thus, the subjectivity in the application of the doctrine is often debated.

Globally, the arguments are turning against capital punishment. Over two-thirds of the countries globally have abolished death penalty (Amnesty Report, 2021). In India, the doctrine persists despite a lack of a statutory definition of “rarest of rare”. 

This blog explores the doctrine’s evolution and its relevance in today’s world. 

HISTORICAL EVOLUTION OF THE DOCTRINE

The doctrine has undergone significant evolution since its introduction in India. It has been in existence since time immemorial. The techniques used have changed over the years. The detailed evolution journey is as follows: 

Pre-independence era 

The death penalty was introduced by the British in the Indian Penal Code, 1890. It was awarded for crimes like murder (Section 302), waging war against the state (Section 121), etc. It could be seen that capital punishment was awarded widely. Take, for example, the hanging of Bhagat Singh, Rajguru, and Sukhdev on March 23, 1931. However, there is no record of formal guidelines that helped in deciding whether to award life imprisonment or the death penalty. 

Post-independence era

1950-1970s 

In the case of Jagmohan Singh v. State of UP (1972), the Supreme Court addressed the constitutionality of the death penalty. This was the first time that the constitutionality of the death penalty was raised before the Hon’ble Court. The petitioner in the case argued that the death penalty violated Article 14 (Right to equality), Article 19 (Freedom of speech and expression) and Article 21 (Right to life).  The court held that the death penalty is constitutional and it is not violative of Articles 14, 19 and 21 if it is awarded after due process. This period saw public unease over the ruling as there were no guidelines on when to award the death penalty. 

1980-83

This period saw the introduction of the ‘Rarest of rare’ doctrine through two landmark cases of Bachan Singh v. State of Punjab (1980) and Machhi Singh v. State of Punjab (1983).

Bachan Singh v. State of Punjab (1980)

In this case, a constitutional bench in a 4:1 ratio introduced the “rarest of rare” doctrine. The Hon’ble court held that the death penalty should only be used in the rarest of rarest cases where there is no alternative punishment left for the court. 

Facts of the case: Banchan Singh, who was the appellant in this case, was convicted of the murder of his wife. He was awarded life imprisonment in that case. He was released after finishing his term. He was then tried for the murders of three more people under section 302 of the Indian Penal Code, 1870. He was convicted of their murders. The sessions judge awarded a death sentence to Banchan Singh, given that he was convicted of 3 more murders after already having been sentenced to life imprisonment for the murder of his wife. The High Court upheld the session court’s verdict. Bachan Singh then appealed to the Supreme Court. 

Issues before the court: whether the death penalty awarded was constitutionally sound.

Judgement: The majority of 4:1 held that fundamental rights provided under the constitution are not absolute under Article 19(2), which provides for reasonable restriction. The court emphasised that rights can be restricted when a member of society does not reciprocally follow his or her duty and infringes others’ rights or causes injury. The court laid down the doctrine that a death sentence can be awarded in the rarest of the rare cases when circumstances are grave and exceptional. 

Macchi Singh v. State of Punjab (1983)

This judgement expanded the doctrine’s ambit. This case helped in the identification of such exceptional cases, which would fall under the ambit of the ‘rarest of rare’ doctrine. The criteria included brutality of crime, motive and premeditation, impact on society, and personality of the accused. 

Facts of the case: Macchi Singh and his accomplices were accused of murdering a family of seventeen members, including women and children. This was an act of revenge by Macchi Singh that shook the society’s conscience. They were tried in the sessions court, where they were found guilty and the death penalty was awarded to Macchi Singh and a few of his co-accused. They appealed in the High Court, which upheld the session’s judgement. The appeal went to the Supreme Court. 

 Arguments before the court: The main argument of the appellants was that the punishment was excessive and violated Article 21 of the Indian Constitution (Right to life and liberty). The defendants argued that the circumstances justified the death penalty. 

Judgement: The court considered two questions to analyse the case. First, if the crime is so extraordinary that no other punishment would be justified. Second, if the circumstances justified the death penalty. The court said that the circumstances of the case fall under the “rarest of rare” doctrine and upheld the death penalty in the case. 

RECENT CASES AND CIRCUMSTANCES

In the Nirbhaya Case (Muskesh & Anr. v. State for NCT of Delhi), the Supreme Court upheld the death penalty awarded to the convicts. The case involved a brutal rape and murder of the victim which shook the conscience of the nation. According to the court, this case fits the description of the ‘rarest of the rare’ cases.  

In Sunder @ Sundarranjan v. State by Inspector of Police, the court converted the death penalty of the convict to a life imprisonment. The case involved the kidnapping and murder of a 7-year-old child. The court highlighted that the death penalty requires no possibility of reform, but the convict showed efforts to acquire vocational skills, which is an indication of reformation. 

In 2024, the nation-shaking rape and murder of a residential doctor in Kolkata’s R.G. Kar Hospital led the West Bengal government to pass the Aparjita Women and Child Bill (West Bengal Criminal Laws and Amendment) Bill 2024. The bill provides for capital punishment. In case of convicted rape which causes the victim’s death or results in vegetative state of the victim, capital punishment can be granted. 

VALIDITY OF THE DOCTRINE IN TODAY’S ERA 

The validity of the ‘rarest of the rare’ doctrine is often debated. The points of debate stem from two factors: the subjectivity and inconsistency in the application of the doctrine. Thus, while the doctrine is still referred to by the Supreme Court of India from time to time, it is facing pressure from critics, researchers and international human rights activists. Reform is needed to bring out clarity and objectivity in the application. 

CONCLUSION 

The rarest of rare doctrine remains significant in death penalties, guiding judges and the public alike. However, the doctrine is criticised for its ambiguous application and lack of objectivity. The judiciary admits that it is a makeshift law rather than a permanent solution. 

Whether the doctrine will continue to exist is dependent on the future judicial decisions and well as legislative developments. It is clear that a more structured and transparent framework is needed to guide the validity of the doctrine in India. 

AUTHOR: SARGUN SINGH

REFERENCES

Cases referred

1. Bachan Singh v. State of Punjab, AIR 1980, SC 898. 
2. Jagmohan Singh v. State of UP, AIR 1973, SC 947. 
3. Machhi Singh v. State of Punjab, AIR 1983, SC 957. 
4. Muskesh & Anr. v. State for NCT of Delhi, AIR 2017, SC 2161

Statutes referred

1. Indian Penal Code, 1870; Section 302 
2. Code of Criminal Procedure, 1973; Section 354(3) 
3. The Constitution of India; Article 14, Article 19 (2), (3), (4), (5), (6) and Article 21. 

LINKS

1. Smriti S., What is the ‘rarest of rare’ doctrine? | Explained, The Hindu, February 19, 2025. (Available at: https://www.thehindu.com/news/national/what-is-the-rarest-of-rare-doctrine-explained/article69235510.ece) 
2. Unknown, Rarest of Rare Doctrine, InsightsIAS, February 19, 2025. (Available at: https://www.insightsonindia.com/2025/02/19/rarest-of-rare-doctrine/) 
3. Spandana Reddy Bommu and Beerelly Sai Vivek Rao, Critical Analysis of the Doctrine Rarest Of the Rare, Journal of Legal Theory and Practice, Young Lawyers Forum-Kashmir. (Available at: https://www.ylfkashmir.com/Projects/law-journal/critical-analysis-of-the-doctrine-rarest-of-the-rare) 
4. Preeti Dash and Rahul Raman, BEYOND INCONSISTENT APPLICATION: INHERENT GAPS IN THE ‘RAREST OF RARE’ FRAMEWORK, Project 39A. (Available at: https://www.project39a.com/writings/2018/5/1/with-death-penalty-it-will-be-harder-to-punish-child-rapists-tat38) 
5. Reaffirmation and Application of the ‘Rarest of Rare’ Doctrine in Santosh Kumar Bariyar v. State of Maharashtra, Casemine, May 14, 2009. (Available at: https://www.casemine.com/commentary/in/reaffirmation-and-application-of-the-%27rarest-of-rare%27-doctrine-in-santosh-kumar-bariyar-v.-state-of-maharashtra/view)