Rarest of Rare Doctrine: Death

Penalty
December7,2014byadminLeaveaComment

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.

Introduction
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 favoring 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 central pillars of our criminal justice system that it is better that
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
Ravjis wrong precedent, it identified another case where the
commutation 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 a 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 offence 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, Bantus 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 Bisois 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 Courts judgment in
Bariyar. Of these, only Saibannas mercy petition was pending in the
Presidents Secretariat when Pratibha Patil completed her term. It is
inexplicable why the Ministry of Home Affairs did not recommend
the commutation of Saibannas death sentence even though his
case was brought to the notice of the President more than a year
ago. Going by Pratibha Patils 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 Saibannas 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 Patils 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 organisation in the world are
discussed in the text below:

1. Unlike many other punishments, loss suffered by death

penalty irreversible, but can never ignore 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. Death penalty is actually deprivation of person from the
fundamental right provided by constitution to the accused,,
which is right to life.
3. Death punishment is absolutely more expensive in comparison
to other punishments provided by 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 death
penalty, they are also kept in special cabins which causes
extra expenses to be suffered by the government.
4. A murder trial normally take more time and money than any
other trail, and when such trial has chances of 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 that 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 understoodMurder 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 worlds

first pact of universal scope at ending 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 offences for which Capital punishment may be
imposed should be progressively restricted, stressing desirability of
abolishing of this punishment in all countries.

Conclusion:
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 cant kill its public for establishing law. The
main reason why this article talks about 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 dont have any law in which death
penalty is mandatory.
We cannot lose sight of the enormity and gravity of a criminals
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 a 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
concernWhy 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 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 convicts 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 judgments 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 Courts balance sheet enquiry, 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 an inevitable
death, demeans individual dignity. Insofar as the Court has
interpreted Article 21s 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.
Edited by Saksham Dwivedi
[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.