Author: Manya Pankaj Kumar Prabhakar, Death Penalty in Rarest of Rare Case
Since childhood we have grown by watching a movie or listening somebody that he murdered someone he will get now death penalty that is Fasi ki Saja in Hindi. So, what is death penalty? Crime and punishment come under the then IPC now BNS. The topic of death penalty sparks a significant debate and remains a deeply controversial subject in world. But the most debated is death penalty in rarest of rarest case.
Giving death penalty on rarest of rare case raises lot of controversies in different verdicts which led to confusion also mostly in rape case that how the crime will come under rarest of rarest case.
Are there any criteria or term that judiciary use to determine whether particular criminal act falls in the ambit of rarest of rare case. India as a democratic country advocating human rights for all how can it award death penalty/capital punishment as its infringement of basic HRs.
Hence, this article examines the concept, evolution and debate and cases of death penalty in rarest of rare cases.
Keywords: Death penalty, rarest of rare, Crime, Punishment…
TO THE POINT
Death Penalty also known as capital punishment, stands out as frequently debate issue in the world. In ancient time capital punishment used to be given on minute mistakes against society. People used to fight for food, sex… During the reign of Mahabharata and Mughal capital punishment was given in very cruelty way. Although most of country moved towards the abolition of capital punishment whereas India still has not abolished it because fear of being awarded death penalty can end heinous crimes against society. In Bachan Singh vs. state of Punjab (1980) SC affirmed the constitutional validity of capital punishment and stated that it will be only awarded on rarest of rare case.
However, Indian laws neither have formula for the application of rarest of rare doctrine nor have consistent view to deter it. Capital punishment in India is restricted to sec121(taking up arms against state), sec302(murder) and sec 361A (kidnapping with ransom). The case of Bachan Singh Vs. state of Punjab brought a new doctrine of rarest of rare. Court asserted that the crime consists two main essential that is nature and gravity. Hence, death penalty will be rewarded in the case of extreme cruelty and brutality and also emphasized on considering both aggravating and mitigating circumstances when deciding.
Aggravating and mitigating circumstances are two sub parts of the rarest of rare doctrine. Aggravating circumstances that increase the severity of crime and could tend the court towards the death penalty while mitigating circumstances reduce the severity and also the sentence. In Machhi Singh case the court establish the criteria for a case to come under the purview of doctrine of rarest of rare.
Recently In 2011, the Supreme Court has applied the doctrine of rarest of rare in Nirbhaya rape-cum -murder case and awarded capital punishment to the accused. But death penalty in rarest of rare case has created confusion and debate among courts and Indians. For example, the court has applied doctrine of rarest of rare in Nirbhaya Case and considered aggravating circumstances but in recent RG Kar case in Kolkata a MBBS student was raped brutally, and murdered her but still court has not considered this case as rarest of rare and awarded accused life imprisonment despite of case falling into ambit of doctrine of rarest of rare case.
Legal Framework
Although there is not robust formula for the application of rarest of rare case. But to maintain the constitutional validity of death sentence, the apex court has established certain criteria or norms to be followed in giving death penalty.
1. Constitutional Framework: Article 21 of the constitution of India upholds the right to life and personal liberty and assures the people that their right to life and personal liberty shall not be deprived. This established a rigorous standard that must be met before a court can impose the death penalty.
2. Statutory provisions: BNS now then IPC imposed the death penalty for certain offences:
IPC Sec 302, BNS sec 103(1): Murder
IPC sec 364A, BNS sec140(2): Kidnapping
IPC sec 376A etc… BNS sec 64(1)/70(1): Aggravated forms of rape
IPC sec 121: waging war against government.
IPC sec 396, BNS sec 310(2): Dacoity with murder
3. Procedural provisions: Procedure of death penalty given in CrPC
Sec 354(3): Courts must have special reason for awarding capital punishment; means it should be awarded only in exceptional circumstances.
Sec 366: Death sentence passed by a session court must be confirmed by the HC.
Sec 416: It says a pregnant woman cannot be executed.
CASE STUDY
Bachan Singh vs. State of Punjab: – Bachan Singh a accused was convicted of murdering his wife; spent 14 years in prison, was released and began residing with his cousin Hukum Singh and his family but he was again convicted and was given death penalty by the session court under sec 302 for murdering three out of four children of his cousin using an axe. He then moved to the high court and appealed there but his appeal was dismissed and the court upheld the death sentence. He then appealed to SC and raised the question for the constitutional validity of death sentence. The apex court upheld the constitutional validity of death penalty but also introduced the doctrine of rarest of rare. It said that death penalty would be awarded considering if the case falling into the domain of rarest of rare doctrine. Awarding Death penalty would depend on aggravating and mitigating circumstances.
Machhi Singh Case: Machhi Singh along with his accomplices conspired together and brutally murder 17 people in Punjab as a part of family conflict. Trial court found them guilty and high courts of Haryana and Punjab upheld the trial court decision. In its ruling, apex court affirmed the death sentence imposed on Machhi Singh and his accomplices. Machi Singh case laid down the guidelines and criteria for the application of doctrine of rarest of rare. The court said that capital punishment would be only applied in exceptional case, considering nature and circumstances of the crime.
These are the criteria that can be assessed before awarding death penalty:
Manner for committing murder: When the murder is committed in an extreme inhumane and brutal way.
Motive for Murder: When the murder is committed with utter cruelty.
When the magnitude of the crime is very high for example mass murder
Crime that caused widespread social outrage and anger for example murder of someone belong to backward classes.
When the murder committed on a child or a helpless woman.
3. Jagmohan Singh vs, state of Uttar Pradesh: A five-judge bench SC upheld the constitutional validity of the death penalty and held that right to life (art21) is not violated if the death penalty is awarded in accordance with the legally prescribed procedure.
4. Mukesh vs state for NCT of Delhi: Also known as Nirbhaya rape case.Nirbhaya a 23 years old girl was brutally gang raped and murdered inside the Bus. The incident took place in 2012. Three judge bench considered this case under the doctrine of rarest of rare case and awarded the death sentence to the accused.
PROOF
Doctrine of rarest of rare was established under the Bachan Singh case. This doctrine says that death sentence will be awarded only if the case comes under the rarest of rare. Court awarded death sentence considering several circumstances, motive, nature and gravity of crime.
Here are the overall statistics since Independence
Around 6,979 death sentences have been handed down across India since 1947 but only 57 executions were carried out.
Between 2003-2012 2,446 sentences were issued, 3,989 were commuted.
Between 2018-2022, 306 death sentences were awarded and around 10% of those judgment did not have special reason to explain.
CONCLUSION
Death penalty is the controversial and confused matter in the world. Although most of the country abolished the death penalty due to its inhumane and cruel nature and it also violates the right to life and liberty given to the citizen of country. But India kept its provision of death penalty/capital punishment in a hope that fear of being hanged can mitigate the heinous act against the society. A doctrine called rarest of rare was established in Bachan Singh case in which court stated that death penalty will be awarded if the crime falls under the doctrine and will consider the circumstances, nature before giving the death penalty.
Therefore, in my opinion Capital punishment should be constitutionally valid in India and court should not consider the right to life and liberty of the person who is accused because he/she murdered someone and has taken someone’s other right to life and liberty. Hence, there is no point to talk or discuss about culprit right during giving death sentence. An accused deserves the same thing that he does with other.
FAQS
Q1. What is the rarest of rarest doctrine?
Ans: If the act is inhumane, brutal and made impact on society on a large scale then the case will be called the rarest of rare.
The doctrine was established in the case Bachan Singh vs. state of Punjab. It says death penalty will be awarder if the case falls under the ambit of doctrine.
Q2. What is death penalty?
Ans: Death penalty that is Fasi ki Saja is the hardest punishments awarded to accused if their criminal act i.e., murder rape etc… falls under the doctrine of rarest of rare.
Q3. Why India still has not abolished the death penalty while utmost the countries have abolished the death penalty.
Ans: India has not abolished the death penalty in a hope that fear of being awarded death sentence can reduce the heinous act against the society. But unfortunately, the heinous act is not reducing.
