The rarest of rare doctrine

1. Before Bachan Singh

• Jagmohan Singh v. State of U.P., 1972 INSC 242, (1973) 1 SCC 20. A Constitution Bench upheld the death penalty against challenges under Articles 14, 19 and 21. The choice between death and life was a judicial discretion exercised on the facts, and the absence of legislative standards did not make it arbitrary.
• Rajendra Prasad v. State of U.P., 1979 INSC 33, (1979) 3 SCC 646. Krishna Iyer J., for the majority, would confine death to cases where the security of the State or society, or public order, was at stake, and focused on the criminal rather than the crime. This narrow view did not survive Bachan Singh.
• The Code of Criminal Procedure, 1973 reversed the old rule. Under the 1898 Code death was the normal sentence for murder and reasons had to be given for not imposing it. Section 354(3) of the 1973 Code, now section 393(3) BNSS, required special reasons for imposing death. Life became the rule and death the exception.

2. Bachan Singh v. State of Punjab (1980)

In Bachan Singh v. State of Punjab, 1980 INSC 120, (1980) 2 SCC 684, a Constitution Bench, by four to one (Bhagwati J. dissenting), upheld the constitutionality of the death penalty for murder and of the sentencing procedure. Its holdings:

• The death penalty does not violate Articles 14, 19 or 21. Article 21 itself contemplates deprivation of life by procedure established by law.
• After the 1973 Code, life imprisonment is the rule and death the exception.
• Death may be imposed only in the “rarest of rare cases when the alternative option is unquestionably foreclosed”.
• The court must consider both the crime and the criminal. Aggravating circumstances relate mainly to the crime; mitigating circumstances relate mainly to the criminal. The Court listed indicative mitigating factors: the influence of extreme mental or emotional disturbance; age (the young or the old); the probability that the accused will not commit further violence and can be reformed and rehabilitated, which the State must disprove; the accused believing himself morally justified; acting under duress or domination of another; and impaired mental capacity.
• Mitigating circumstances must be given a liberal and expansive construction.
• The Court refused to lay down rigid standards, saying the categories of crime could not be exhaustively defined.

3. Machhi Singh v. State of Punjab (1983)

In Machhi Singh v. State of Punjab, 1983 INSC 78, (1983) 3 SCC 470, a three-judge Bench, dealing with a series of killings arising out of a family feud, tried to give content to the formula. The community's collective conscience may demand death when the crime is exceptional in one of five ways:

• Manner of commission: extremely brutal, grotesque, diabolical, revolting or dastardly, such as burning alive or dismembering the body.
• Motive: total depravity and meanness, such as a hired killing, or murder of a ward for property by one in a position of trust.
• Anti-social or socially abhorrent nature: murder of a member of a Scheduled Caste or minority community to arouse social wrath, or bride burning for dowry.
• Magnitude: multiple murders of all or almost all members of a family or of a caste or community.
• Personality of the victim: an innocent child, a helpless woman or old person, or a public figure murdered for political reasons.

The Court then set out the method. Draw up a balance-sheet of aggravating and mitigating circumstances, giving full weight to the mitigating ones. Ask whether there is something uncommon about the crime that makes life imprisonment inadequate, and whether, even taking the mitigating circumstances at their highest, there is no alternative to death.

4. Refinements

• Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, 2009 INSC 808, (2009) 6 SCC 498. The Court commuted a death sentence. It stressed that the court must show why life imprisonment is “unquestionably foreclosed”, that the possibility of reformation must be examined and the State must lead evidence to rule it out, that public opinion is not a relevant factor, and it noted the inconsistency of past decisions.
• Sangeet v. State of Haryana, 2012 INSC 522, (2013) 2 SCC 452. The aggravating-and-mitigating balance-sheet of Machhi Singh had not been endorsed in that form by Bachan Singh, and its application needed a fresh look because it had led to uneven results.
• Swamy Shraddananda v. State of Karnataka, 2008 INSC 853 and Union of India v. V. Sriharan, 2015 INSC 886: where the case falls just short of the rarest of rare, the court may impose life without remission for the rest of life or a long fixed term.
• Mukesh v. State (NCT of Delhi), 2017 INSC 448, (2017) 6 SCC 1. The death sentences in the December 2012 Delhi gang rape and murder were confirmed as falling within the rarest of rare, on the brutality of the crime and the vulnerability of the victim.
• Manoj v. State of Madhya Pradesh, 2022 INSC 606, (2023) 2 SCC 353. Mitigation must be investigated, not assumed: the State must produce material on the accused's background, mental health and conduct in prison before the sentence is decided.

5. Problem

A, aged 23, with no previous record, kills his neighbour's two children, aged six and eight, after a quarrel over a boundary wall, and then surrenders at the police station. The Sessions Court sentences him to death. Advise on his appeal on sentence.

Issue. Whether the case is one of the rarest of rare in which the alternative of life imprisonment is unquestionably foreclosed.

Law. Section 103(1) BNS (old 302 IPC) punishes murder with death or life. Section 393(3) BNSS requires special reasons for death. Bachan Singh makes life the rule and requires both crime and criminal to be considered; Machhi Singh lists the personality of the victim (innocent children) and magnitude as aggravating; Bariyar and Manoj require the State to show, on evidence, that reform is not possible.

Application. The aggravating side is serious: two young, defenceless victims, which falls within the fifth Machhi Singh category. On the mitigating side: A is young, has no record, the killing arose from a sudden quarrel rather than planning, and he surrendered, which suggests remorse. Unless the State has produced material, as Manoj requires, showing that he cannot be reformed, the alternative of life is not unquestionably foreclosed. If the sentencing hearing in the trial court was a formality, that is a separate ground.

Conclusion. The High Court is likely to decline confirmation under section 407 BNSS and commute the sentence to imprisonment for life, possibly with a direction under Shraddananda and Sriharan that A serve a fixed long term without remission.

How this is examined

“What is rarest of rare case? Explain with decided cases” appears in February 2025, August 2024 and October 2023 alike: it is the single most frequent question in this paper. Answer in the order of sections 1 to 4 and close with the two-halves point from the trap box. If a problem is set, use the issue / law / application / conclusion layout above.