RAREST OF RARE CASES:

INTERPRETATION OF SUPREME COURT

SUBMITTED BY
NUPUR KUMARI
ROLL NO.- 1032
3
rd
SEM.


SUBMITTED TO
FR. PETER LADIS F

AUGUST 2014
CHANAKYA NATIONAL LAW UNIVERSITY

Acknowledgement
Its a fact that any research work prepared, compiled or formulated in
isolation is inexplicable to an extent. This research work, although
prepared by me, is a culmination of efforts of a lot of people.
Firstly, I would like to thank our Criminal law teacher, Fr. Peter LADIS
F for giving such a topic to research which assisted me in acquiring some
knowledge related to one of the main issue of Indias legal system. I
would like to thank him for his valuable suggestions towards the making
of this project.
Thereafter, I would like to thanks the IT department and Library of our
college , who gave us the internet facility and related study materials.
I cannot ignore the contributions made by my classmates and friends
towards the completion of this project work .And I would also like to
express my gratitude towards the library staff of my college which
assisted me in acquiring the sources necessary for the compilation of my
project.
Last, but not the least, I would like to thank the Almighty for obvious
reasons.
---
NUPUR KUMARI


INTRODUCTION:
On January 21, 2014, the Supreme Court in the case of Shatrughan Chauhan v. Union of
India
1
, commuted death sentences of 15 death convicts to life sentence. These death row
convicts approached the apex court as a final resort after their mercy petitions were dismissed
by the President of India. The Court in this batch matter held that various supervening
circumstances which had arisen since the death sentences were confirmed by the Supreme
Court in the cases of these death row convicts had violated their Fundamental Rights to the
extent of making the actual execution of their sentences unfair and excessive. Soon after this
decision, the Supreme Court in V. Sriharan v. Union of India
2
, once again invoked this strand
of death jurisprudence to commute the death sentences of all the three convicts in the Rajiv
Gandhi Assassination case. Likewise, in the Devender Pal Singh Bhullars case
3
, the Court
commuted the death sentence of the convict on the ground of inordinate delay in the
execution of sentence and mental health problems faced by the petitioner.
These Supreme Court rulings have averted at least 19 imminent executions in all in the
recent past. It is to be borne in mind that India before it executed Ajmal Kasab and Afzal
Guru last year, had an execution free run for a period of 8 years. This de facto
moratorium led many to believe and argue that India must consider the utility and
desirability of retaining this most exceptional and absolute penalty. These commutations
affected by the Supreme Court have once again energized the debate on death penalty.
Once again, people have begun to speculate about the end goal of keeping a penalty such
as death sentence on the statute book. The issue has also gathered considerable debate in
the mainstream media. Editorials in major newspapers have been published asking for a
re-look at death penalty
4
.

1
(2014) 3 SCC 1.
2
(2014) 4 SCC 242
3
Navneet Kaur v. State (NCT Of Delhi), Curative Petition (Criminal) No. 88 of 2013 (Decided on March 31, 2014).
4
, Justice more humane, Indian Express Editorial, January 22,2014available at
http://indianexpress.com/article/opinion/editorials/justice-more-humane/; Hindustan Times Editorial, SC ruling on
death penalty a step closer to its abolition, January 22,2014 available at
http://www.hindustantimes.com/comment/sc-ruling-on-death-penalty-a-step-closer-to-its-abolition/article1-
1175780.aspx; The Hindu Editorial, The Injustice of Delay, http://www.thehindu.com/opinion/editorial/the-
injustice-of-delay/article5606434.ece , visited on 28th September 2014, at 6:00pm IST..
At this juncture, an exhaustive study on the subject would be a useful and salutary
contribution to the cause of public debate on this issue. Such a study will also provide a
definitive research backed orientation to the law makers and judges on this very
contentious issue.
In the last decade death penalty has become a subject-matter of intense focus in the Supreme
Court. The Apex Court on various occasions has wrestled with the disparate application of
law on death penalty and constitutional fairness implications of the same . A systematic study
which would address the queries and concerns of Courts and also presents an international
perspective on the issue is much needed. The Court in some of these cases has specifically
requested the Law Commission to undertake research in this behalf.
The Supreme Court in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra
5
has, in
this regard, observed:
We are also aware that on 18-12-2007, the United Nations General Assembly adopted
Resolution 62/149 calling upon countries that retain the death penalty to establish a
worldwide moratorium on executions with a view to abolishing the death penalty. India
is, however, one of the 59 nations that retain the death penalty. Credible research,
perhaps by the Law Commission of India or the National Human Rights
Commission may allow for an up-to-date and informed discussion and debate on the
subject.
Similarly, the Court in Shankar Kisanrao Khade v. State of Maharashtra
6
was also concerned
with another dimension of the issue of death penalty and rued lack of research on the issue. The
Court held:
It seems to me that though the courts have been applying the rarest of rare principle, the
executive has taken into consideration some factors not known to the courts for
converting a death sentence to imprisonment for life. It is imperative, in this regard, since
we are dealing with the lives of people (both the accused and the rape-murder victim) that

5
(2009) 6 SCC 498
6
(2013) 5 SCC 546
the courts lay down a jurisprudential basis for awarding the death penalty and when the
alternative is unquestionably foreclosed so that the prevailing uncertainty is avoided.
Death penalty and its execution should not become a matter of uncertainty nor should
converting a death sentence into imprisonment for life become a matter of chance.
Perhaps the Law Commission of India can resolve the issue by examining whether
death penalty is a deterrent punishment or is retributive justice or serves an
incapacitative goal.
It does prima facie appear that two important organs of the State, that is, the judiciary and the
executive are treating the life of convicts convicted of an offence punishable with death with
different standards. While the standard applied by the judiciary is that of the rarest of rare
principle (however subjective or Judge-centric it may be in its application), the standard applied
by the executive in granting commutation is not known. Therefore, it could happen (and might
well have happened) that in a given case the Sessions Judge, the High Court and the Supreme
Court are unanimous in their view in awarding the death penalty to a convict, any other option
being unquestionably foreclosed, but the executive has taken a diametrically opposite opinion
and has commuted the death penalty. This may also need to be considered by the Law
Commission of India.

OBJECT OF STUDY:
The object of study for this project is landmark rare cases which brought remarkable change in
our Indian legal system.

SCOPE OF STUDY:
This study will help us to understand the reasonability of death sentences given by courts in
India. It will further help us to understand it in a better way that whether death sentence is in
contravention of human rights or not and what is the international perspective on this topic.
Again this study will help us to understand that what is the concept of rarest of rare cases? and
why death penalty can only be given in rarest of rare cases.



HYPOTHESIS:
Death penalty is given in very rare and grave offences. A clear reason must be given for granting
death penalty.

RESEARCH METHODOLOGY:
The researcher has primarily relied on the doctrinal research methodology, things to study are
online journals, law reviews, commentaries, law books etc.
















TABLE OF CONTENTS

CHAPTERISATION:

1. RAREST OF RARE CASES: MEANING

2. RAREST OF RARE CASES: INTERNATIONAL SCENARIO

3. RAREST OF RARE CASES: A CRITICAL ANALYSIS

4. CONCLUSION & SUGGESTIONS


BIBLIOGRAPHY:
-PRIMARY SOURCE
-SECONDARY SOURCE

WEBLIOGRAPHY:







CHAPTERISATION:
1. RAREST OF RARE CASES:MEANING
The Indian Penal Code, 1860 prescribes death penalty for a number of crimes. Some of the
offences punishable by sentence of death under the Indian Penal Code are treason (section
121), abetment of mutiny (section 132), perjury resulting in the conviction and death of an
innocent person (section 194), threatening or inducing any person to give false evidence
resulting in the conviction and death of an innocent person (section 195A), murder (section
302), kidnapping for ransom (section 364A) and dacoity with murder (section 396). Amongst
these offences, death penalty continues to be used most commonly for section 302
7
.
Additionally, many other special legislations such as the Air Force Act, 1950
8
, the Army Act,
1950
9
, the Navy Act, 1950
10
, Commission of Sati (Prevention) Act, 1987 [section 4(1)]
11
,
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [section
3(2)(i)]
12
, Explosive Substances Act, 1908 [section 3(b)]
13
, Unlawful Activities Prevention
Act, 1967 [section 16(1)]
14
also provide for the death penalty.
Section 354(3) of the Code of Criminal Procedure, 1973 makes it mandatory for the court to
state reasons for the sentence awarded, and in case of sentence of death special reasons for
the same
15
. The Supreme Court observed by a 4 to 1 majority that now, according to the
changed legislative policy which is patent on the face of section 354(3) the normal
punishment for murder and six other capital offences(there are now nine sections in all, i.e.,
sections 121, 132, 194, 195-A, 302, 305, 307, 364-A and 396 wherein death sentence has
been provided. This does not include section 303 which has been declared unconstitutional
by the Supreme Court.) under the Indian Penal Code is imprisonment for life or
imprisonment for a term of years and death penalty is an exception. In this context section

7
Indian Penal Code, 1860, published in 2013
8
Air Force Act, 1950, published in 2012
9
Army Act, 1950, published in 2012
10
Navy Act, 1950, published in 2013
11
Commission of Sati (prevention) Act, 1987, published in 2013
12
Scheduled Caste and Scheduled Tribes (prevention of atrocities) act, 1989, published in 2012
13
Explosive Substances act, 1908, published in 2013
14
Unlawful Activities Prevention Act, 1967, published in 2012
15
Code of Criminal Procedure, 1973, published in 2013
235(2) of the Code of Criminal Procedure, 1973 which is also relevant provides for a
bifurcated trial and specifically gives the accused a right of pre-sentence hearing at which
stage he can bring on record material or evidence which may have a bearing on the choice of
sentence. The present legislative policy discernible from sections 235(2) and 354(3) is that in
fixing the degree of punishment or making the choice of sentence for various offences,
including one under section 302, Indian Penal Code, the court should not confine its
consideration principally or merely to the circumstances connected with the particular crime
but also give due consideration to the circumstances of the criminal.
In rarest of rare cases when collective conscience of the community is so shocked that it will
expect the holders of the judicial power centre to inflict death penalty irrespective of their
personal opinion as regards desirability or otherwise of retaining death penalty, death
sentence can be awarded the community may entertain such sentiment in the following
circumstances:
1. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or
dastardly manner so as to arouse intense and extreme indignation of the community.
2. When the murder is committed for a motive which evinces total depravity and meanness,
for example, murder by hired assassin for money or reward, or a cold-blooded murder for
gains of a person vis--vis whom the murderer is in a dominating position or in a position
of trust, or murder is committed in the course for betrayal of the motherland.
3. When murder of a member of a scheduled caste or minority community etc. is committed
not for personal reasons but in circumstances which arouse social wrath, or in cases of
bride burning or dowry death or when murder is committed in order to remarry for the
sake of extracting dowry once again or to marry another woman on account of
infatuation.
4. When the crime is enormous in proportion, for instance, when multiple murders, say of
all or almost all the members of a family or a large number of persons of a particular
caste, community or locality are limited.
5. When the victim of a murder is an innocent child or helpless woman or old or infirm
person vis--vis whom the murderer is in a dominating position or a public figure
generally loved and respected by the community.
16



2: RAREST OF RARE CASES: INTERNATIONAL
SCENARIO:
The United Nations (UN): Capital punishment is one of the most debated issues around the world.
The UN General Assembly recognised that in case of capital punishment there is a need for high
standard of fair trial to be followed by every country. Procedures to be followed must be just, fair
and reasonable. For example the UN Economic and Social Council (ECOSOC) in resolution No. 15
of 1996 (23 July 1996) encouraged member countries to abolish death sentence and recommended
that those countries who retain it must ensure defendants a speedy and fair trial.
Article 5 of the Universal Declaration of Human Rights 1948 provides that no one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 7 of the
International Covenant on Civil and Political Rights (ICCPR) 1966 provides that no one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment. By several
resolutions the United Nations suggested protection of human rights of the persons facing capital
punishment which were again approved by Economic and Social Council in resolution No. 50 of
1984 (26
th
May ,1984). These may be summarised as follows:
(I)Countries which have not yet abolished capital punishment may impose it only
for the most serious crimes;
(II) Capital punishment may be imposed only in case of serious offences according to
established law for the time being in force. There must not be any retrospective effect of the
punishment;

16
Prof. T. Bhattacharyya, The Indian Penal Code, 7
th
edition, 2013, Central Law Agency, Delhi, page 445-447.
(III) Young person at the time of commission of crime, whose age was below16 years,
should not be awarded death penalty;
(IV) Death penalty must not be imposed upon pregnant women or on new mothers or insane
persons;
(V) Capital punishment must be imposed after following fair procedure according to Article
14 of the ICCPR and when guilt is clearly proved leaving no room for reasonable doubt or
alternative explanation of the fact;
(VI) Any person sentenced to capital punishment shall have right to appeal to the higher
court and steps should be taken to ensure him right to appeal;
(VII) Any one sentenced to capital punishment should be given the right to seek pardon or
commutation of sentence;
(VIII) When appeal, pardon or commutation of sentence proceeding is pending, capital
punishment shall not be executed;
(IX) Execution of capital punishment must be by way of minimum possible suffering.

2.2 The European Union: During 19
th
century due to work of Prof. Beccaria and other
criminologists, political and economic changes as well as due to initiatives of Central and Eastern
Europe, the European countries almost became capital punishment-free area and recognised death
penalty as cruel and inhuman, which imposes psychological terror and gives scope for
disproportional punishment. The 6
th
protocol to the European convention on Human Rights 1982
provides for the complete abolition of death sentence in peacetime by all members. The Assembly of
the Council of Europe in the year 1994 with further protocol to the European convention on Human
Rights recommended for the complete abolition of death penalty even in war time and under the
Military Laws.
On 3
rd
May 2002 the 13
th
protocol to the European convention for the protection of Human
Rights and Fundamental Freedoms was open for signature of member states which provides for the
total abolition of death penalty in all circumstances. Most of the countries in the European Union
have abolished death sentence. Capital Punishment has been recognised as cruel, degrading and
inhuman punishment which infringes upon the basic human rights of the accused as expressed in
article 3 of the European Convention on Human Rights. Article 3 of the UDHR also provides for
right to life, liberty and security of human beings.
Following the resolutions of the European Union and the United Nations, several countries
abolished death penalty completely. For example, Germany is a death penalty-free zone. However,
China imposed maximum death penalty. Saudi Arabia, Iran, Iraq, the United States of America
(USA) are also in the first row so far the application of capital punishment is concerned. In England
it was abolished by the Murder (Abolition of Death Penalty) Act, 1965 though at the end of 18
th

century about 200 offences were punishable by death.
In Warwickshire (England) a person was prosecuted on the charge of murder. A little girl was under
the care and custody of her uncle due to death of her multi-millionaire father. Accordingly she was
about to inherit her fathers property when she would become 16 years of age .The uncle was
affectionate to her about her food, shelter, education and other reasonable necessities. When she was
about nine years of age, one night the neighbours heard her cry which was quite unnatural saying
oh good uncle, please dont kill me and so forth. Just after this incident she disappeared and could
not be traced. The police were informed about the matter. The uncle was suspected of committing
murder of his niece and disposing of her body as in her absence he was her fathers heir apparent and
would inherit his huge estate. He was arrested immediately though was released on bail on condition
to produce the girl soon before the court. He could not produce the girl and he was sentenced to
capital punishment. But after several years of the execution of death sentence, the girl returned to
Warwickshire. She said that due to fear of punishment for her mischief, she had escaped to the
neighbouring town for those years. Death sentence once enforced is irreversible and irrevocable and
the life which is lost cannot be brought back and the injustice done is irreparable.
17



17
Prof. I. G. Ahmad, DEATH Sentence and Criminal Justice in Human Rights Perspective, available at
www.bhu.ac.in/lawfaculty/blj2006...09/.../2_Prof.%20I.G.Ahmad.doc, visited on September 28
th
2014, at
5:00pm IST.
3. RAREST OF RARE CASES: A CRITICAL
ANALYSIS:
Inconsistency and arbitrariness in Death Penalty Sentencing
On multiple occasions, the Court has pointed that the rarest of rare dictum propounded in Bachan
Singh
18
has been inconsistently applied by courts. In Bariyar
19
, the Court in this behalf has held
that "there is no uniformity of precedents, to say the least. In most cases, the death penalty has
been affirmed or refused to be affirmed by us, without laying down any legal principle."
The Court relied on the decision in Swamy Shraddananda (2)
20
, wherein the Court observed:
The truth of the matter is that the question of death penalty is not free from the
subjective element and the confirmation of death sentence or its commutation by this
Court depends a good deal on the personal predilection of the Judges constituting the
Bench.
The inability of the criminal justice system to deal with all major crimes equally
effectively and the want of uniformity in the sentencing process by the Court lead to a
marked imbalance in the end results. On the one hand there appears a small band of cases
in which the murder convict is sent to the gallows on confirmation of his death penalty by
this Court and on the other hand there is a much wider area of cases in which the offender
committing murder of a similar or a far more revolting kind is spared his life due to lack
of consistency by the Court in giving punishments or worse the offender is allowed to
slip away unpunished on account of the deficiencies in the criminal justice system. Thus
the overall larger picture gets asymmetric and lopsided and presents a poor reflection of
the system of criminal administration of justice. This situation is a matter of concern for
this Court and needs to be remedied.

18
(1993) SC 305
19
(2009) 6 SCC 498
20
(2008) 13 SCC 767
The Court further observed that both academics and the Court have previously noticed the issue
of subjectivity in death penalty. In this regard, the Court made a reference to a joint report by
Amnesty International and People's Union for Civil Liberties titled "Lethal Lottery: The Death
Penalty in India, A Study of Supreme Court Judgments in Death Penalty Cases, 1950-2006"
21
.
The Court further observed:
It can be safely said that the Bachan Singh [(1980) 2 SCC 684] threshold of the rarest
of rare cases has been most variedly and inconsistently applied by the various High
Courts as also this Court.
In Sangeet and Anr. v. State of Haryana
22
, the Court observed that "it does appear that in view of
the inherent multitude of possibilities, the aggravating and mitigating circumstances approach
has not been effectively implemented." The Court observed:
. Therefore, in our respectful opinion, not only does the aggravating and mitigating
circumstances approach need a fresh look but the necessity of adopting this approach
also needs a fresh look in light of the conclusions in Bachan Singh [(1980) 2 SCC
684]. It appears to us that even though Bachan Singh [(1980) 2 SCC 684] intended
principled sentencing, sentencing has now really become Judge-centric as
highlighted in Swamy Shraddananda [(2008) 13 SCC 767 and Bariyar [(2009) 6 SCC
498]. This aspect of the sentencing policy in Phase II as introduced by the Constitution
Bench in Bachan Singh [(1980) 2 SCC 684] seems to have been lost in transition."
Constitutional Implications arising out of Arbitrariness in Death Penalty Sentencing
The Court has also extensively commented on the fundamental rights implications arising out of
disparate application of the death penalty law. In Bariyar
23
, the Court observed:
. In Swamy Shraddananda (2) v. State of Karnataka [(2008) 13 SCC 767], the Court
notes that the awarding of sentence of death depends a good deal on the personal

21
A Study of Supreme Court Judgements in Death Penalty Cases, 1950-2006, available at
http://www.amnesty.org/en/library/info/ASA20/007/2008, visited on September 29
th
2014, at 6:00pm IST.
22
(2013) 2 SCC 452
23
(2009) 6 SCC 498
predilection of the Judges constituting the Bench. This is a serious admission on the part
of this Court. Insofar as this aspect is considered, there is inconsistency in how Bachan
Singh [(1980) 2 SCC 684] has been implemented, as Bachan Singh [(1980) 2 SCC 684]
mandated principled sentencing and not judge-centric sentencing. There are two sides of
the debate. It is accepted that the rarest of the rare case is to be determined in the facts
and circumstance of a given case and there is no hard-and-fast rule for that purpose.
There are no strict guidelines. But a sentencing procedure is suggested. This procedure is
in the nature of safeguards and has an overarching embrace of the rarest of rare dictum.
Therefore, it is to be read with Articles 21 and 14.
Frequent findings as to arbitrariness in sentencing under Section 302 may violate the idea
of equal protection clause implicit under Article 14 and may also fall foul of the due
process requirement under Article 21.
It is to be noted that we are not focusing on whether wide discretion to choose between
life imprisonment and death punishment under Section 302 is constitutionally permissible
or not. The subject-matter of inquiry is how discretion under Section 302 may result in
arbitrariness in actual sentencing. Section 302 as held by Bachan Singh [(1980) 2 SCC
684] is not an example of law which is arbitrary on its face but is an instance where law
may have been arbitrarily administered.
Equal protection clause ingrained under Article 14 applies to the judicial process at the
sentencing stage. We share the Court's unease and sense of disquiet in Swamy
Shraddananda (2) case and agree that a capital sentencing system which results in
differential treatment of similarly situated capital convicts effectively classifies similar
convicts differently with respect to their right to life under Article 21. Therefore, an equal
protection analysis of this problem is appropriate. In the ultimate analysis, it serves as an
alarm bell because if capital sentences cannot be rationally distinguished from a
significant number of cases where the result was a life sentence, it is more than an
acknowledgement of an imperfect sentencing system. In a capital sentencing system if
this happens with some frequency there is a lurking conclusion as regards the capital
sentencing system becoming constitutionally arbitrary. We have to be, thus, mindful that
the true import of rarest of rare doctrine speaks of an extraordinary and exceptional
case.

Miscarriage of Justice Occasioned in Death Penalty Cases
The Supreme Court, on more than one occasion, has also brought to light the miscarriage of
justice in death penalty cases. The Court in Bariyar
24
has pointed out gross mis-application of
death penalty law in a host of cases, which have yielded in the award of death sentences without
following the stipulated test mandated in Bachan Singh
25
.
The Supreme Court in Bariyar
26
held the case in Ravji
27
to be per-incuriam the constitution
bench decision in Bachan Singh
28
. The Court in this behalf held:
. The background analysis leading to the conclusion that the case belongs to the rarest of
rare category must conform to highest standards of judicial rigor and thoroughness as the
norm under analysis is an exceptionally narrow exception. A conclusion as to the rarest
of rare aspect with respect to a matter shall entail identification of aggravating and
mitigating circumstances relating both to the crime and the criminal. It was in this context
noted: (Bachan Singh case, SCC p. 738, para 161)
The expression special reasons in the context of this provision, obviously
means exceptional reasons founded on the exceptionally grave
circumstances of the particular case relating to the crime as well as the
criminal. (emphasis supplied)
Curiously, in Ravji v. State of Rajasthan this Court held that it is only characteristics
relating to crime, to the exclusion of the ones relating to criminal, which are relevant to
sentencing in criminal trial, stating: (SCC p. 187, para 24)

24
(2009) 6 SCC 498
25
(1993) SC 305
26
(2009) 6 SCC 498
27
(1871) 8 Bom HC (CrC) 37
28
(1993) SC 305
The crimes had been committed with utmost cruelty and brutality without
any provocation, in a calculated manner. It is the nature and gravity of the
crime but not the criminal, which are germane for consideration of
appropriate punishment in a criminal trial. The Court will be failing in its
duty if appropriate punishment is not awarded for a crime which has been
committed not only against the individual victim but also against the society
to which the criminal and victim belong. The punishment to be awarded for a
crime must not be irrelevant but it should conform to and be consistent with
the atrocity and brutality with which the crime has been perpetrated, the
enormity of the crime warranting public abhorrence and it should respond to
the society's cry for justice against the criminal.
We are not oblivious that Ravji
29
case has been followed in at least six decisions of this
Court in which death punishment has been awarded in last nine years, but, in our opinion,
it was rendered per incuriam. Bachan Singh
30
specifically noted the following on this
point: (SCC p. 739, para 163)
The present legislative policy discernible from Section 235(2) read with
Section 354(3) is that in fixing the degree of punishment or making the
choice of sentence for various offences, including one under Section 302 of
the Penal Code, the court should not confine its consideration principally or
merely to the circumstances connected with the particular crime, but also
give due consideration to the circumstances of the criminal.
Further, the Court in Bariyar
31
also pointed out 6 decisions of Supreme Court where the per-
incuriam reasoning propounded in Ravji
32
.
Since Bariya
33
r, the Supreme Court has admitted on multiple occasions that Ravji has been
rendered per-incurium Bachan Singh
34
. The Court in Dilip Tiwari v. State of Mahrashtra
35
, (para

29
(1871) 8 Bom HC (CrC) 37
30
(1993) SC 305
31
(2009) 6 SCC 498
32
(1871) 8 Bom HC (CrC) 37
33
(2009) 6 SCC 498
67-68), Rajesh Kumar v. State
36
, (paras 66-70), Sangeet v. State of Haryana
37
, (para 37),
Mohinder v. State of Punjab
38
, (para 37.3) observed that binding reliance on Ravji has led to
deeply flawed sentencing by Courts. In these cases not even a single mitigating circumstance has
been considered by the Court and only aggravating aspects of the have been given any emphasis
which is in clear violation to the Constitution bench decision in Bachan Singh
39
.
It also bears mention that 14 former judges addressed an appeal to the President of India to seek
his urgent intervention to commute the death sentences of these 13 convicts who have been
sentenced to death on account of reliance on the per-incurium precedent of Ravji.
40
In this letter,
it was also pointed out that two prisoners who had been wrongly sentenced to death, Ravji Rao
and Surja Ram (both from Rajasthan), had already been executed on May 4, 1996, and April 7,
1997, respectively, pursuant to the flawed judgments. The appeal letter called these as
constituting the gravest known miscarriages of justice in the history of crime and punishment in
independent India.
Sentencing Bias in Brutal Crimes
In Om Prakash v. State of Haryana
41
, Thomas, J. deliberated on the apparent tension between
responding to cry of the society and meeting the Bachan Singh
42
dictum of balancing the
mitigating and aggravating circumstances. The Court was of the view that the sentencing Court
is bound by Bachan Singh
43
and not in specific terms to the incoherent and fluid responses of
society.

34
(1993) SC 305
35
(2010) 1 SCC 775
36
(2011) 13 SCC 706
37
(2013) 2 SCC 452
38
(2013) 3 SCC 294
39
(1993) SC 305
40
V Venkatesan, A Case against the Death Penalty 29(17) Frontline (25 August7 September 2012) available at
http://www.frontline.in/navigation/?type=static&page=flonnet&rdurl=fl2917/stories/20120907291700400.htm,
visited on September 28
th
2014, at 6:00pm IST.
41
(1999) 3 SCC 19
42
(1993) SC 305
43
(1993) SC 305
In Rajesh Kumar v. State through Govt. of NCT of Delhi
44
, the Court observed:
On the other hand, while considering the aggravating circumstances, the High Court
appears to have been substantially influenced with the brutality in the manner of
committing the crime. It is no doubt true that the murder was committed in this case in a
very brutal and inhuman fashion, but that alone cannot justify infliction of death penalty.
This is held in several decisions of this Court.
In Bariyar
45
, the Court observed, that there is no consensus in the Court on the use of social
necessity as a sole justification in death punishment matters. The Court also observed:
It has been observed, generally and more specifically in the context of death punishment,
that sentencing is the biggest casualty in crimes of brutal and heinous nature. Our capital
sentencing jurisprudence is thin in the sense that there is very little objective discussion on
aggravating and mitigating circumstances. In most such cases, courts have only been
considering the brutality of crime index. There may be other factors which may not have
been recorded.
We must also point out, in this context, that there is no consensus in the Court on the use
of social necessity as a sole justification in death punishment matters. The test which
emanates from Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] in clear terms is
that the courts must engage in an analysis of aggravating and mitigating circumstances
with an open mind, relating both to crime and the criminal, irrespective of the gravity or
nature of crime under consideration. A dispassionate analysis, on the aforementioned
counts, is a must. The courts while adjudging on life and death must ensure that rigour and
fairness are given primacy over sentiments and emotions.
In Om Prakash v. State of Haryana [(1999) 3 SCC 19 : 1999 SCC (Cri) 334] K.T.
Thomas, J. deliberated on the apparent tension between responding to cry of the society
and meeting the Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] dictum of
balancing the mitigating and aggravating circumstances.

44
(2011) 13 SCC 706
45
(2009) 6 SCC 498

Emergence of Alternate Punishment to Capital Sentencing
It is also to be noted that in the last few years, Supreme Court has entrenched the punishment of
full life or life sentence of determinate number of years as a response to challenges presented
in death cases. The Supreme Court speaking through a three-judge bench decision in Swamy
Shraddhanand (2) laid the foundation of this emerging penal option in following terms:
The matter may be looked at from a slightly different angle. The issue of sentencing has
two aspects. A sentence may be excessive and unduly harsh or it may be highly
disproportionately inadequate. When an appellant comes to this Court carrying a death
sentence awarded by the trial court and confirmed by the High Court, this Court may
find, as in the present appeal, that the case just falls short of the rarest of the rare category
and may feel somewhat reluctant in endorsing the death sentence. But at the same time,
having regard to the nature of the crime, the Court may strongly feel that a sentence of
life imprisonment subject to remission normally works out to a term of 14 years would be
grossly disproportionate and inadequate. What then should the Court do? If the Court's
option is limited only to two punishments, one a sentence of imprisonment, for all intents
and purposes, of not more than 14 years and the other death, the Court may feel tempted
and find itself nudged into endorsing the death penalty. Such a course would indeed be
disastrous. A far more just, reasonable and proper course would be to expand the options
and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus
between 14 years' imprisonment and death. It needs to be emphasised that the Court
would take recourse to the expanded option primarily because in the facts of the case, the
sentence of 14 years' imprisonment would amount to no punishment at all.
Further, the formalisation of a special category of sentence, though for an extremely few
number of cases, shall have the great advantage of having the death penalty on the statute
book but to actually use it as little as possible, really in the rarest of rare cases. This
would only be a reassertion of the Constitution Bench decision in Bachan Singh [(1980) 2
SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898] besides being in accord with the
modern trends in penology.
The observations in Swamy Shraddhanand (2
46
) have been followed by the Court in a multitude
of cases such as Haru Ghosh v. State of W.B.
47
, State of U.P. v. Sanjay Kumar
48
,
Sebastian v. State of Kerala
49
, Gurvail Singh v. State of Punjab
50
where full life or sentence of
determinate number of years has been awarded as opposed to death penalty.
Uneven Application of Death Sentence against the Marginalized
In Bachan Singh
51
, while the constitutionality of death penalty was upheld, Justice Bhagwati in
his dissenting opinion observed:
There is also one other characteristic of death penalty that is revealed by a study of the
decided cases and it is that death sentence has a certain class complexion or class bias
inasmuch as it is largely the poor and the downtrodden who are the victims of this
extreme penalty. We would hardly find a rich or affluent person going to the gallows.
Capital punishment, as pointed out by Warden Duffy is a privilege of the poor. Justice
Douglas also observed in a famous death penalty case, Former Attorney Pamsey Clark
has said: it is the poor, the sick, the ignorant, the powerless and the hated who are
executed. So also Governor Disalle of Ohio State speaking from his personal
experience with the death penalty said:
During my experience as Governor of Ohio, I found the men in death row had one
thing in common; they were penniless. There were other common denominators, low
mental capacity, little or no education, few friends, broken homes but the fact that
they had no money was a principal factor in their being condemned to death. . . .

46
(2008) 13 SCC 767
47
(2009) 15 SCC 551
48
(2012) 8 SCC 537
49
(2010) 1 SCC 58
50
(2013) 2 SCC 713
51
(1993) SC 305
The same point was stressed by Krishna Iyer, J. in Rajendra Prasad case [(1979) 3 SCC
646 : 1979 SCC (Cri) 749 : AIR 1979 SC 916 : 1979 Cri LJ 792] with his usual punch
and vigour and in hard hitting language distinctive of his inimitable style:
. . . Who, by and large, are the men whom the gallows swallow? The white-collar
criminals and the corporate criminals whose wilful economic and environmental
crimes inflict mass deaths or who hire assassins and murder by remote control?
Rarely. With a few exceptions, they hardly fear the halter. The feuding villager,
heady with country liquor, the striking workers desperate with defeat, the political
dissenter and sacrificing liberator intent on changing the social order
from satanic misrule, the waifs and strays whom society has hardened by neglect
into street toughs, or the poor householder husband or wife driven by dire
necessity or burst of tantrums it is this person who is the morning meal of the
macabre executioner. (SCC pp. 674-75, para 72)
Historically speaking, capital sentence perhaps has a class bias and colour bar, even as
criminal law barks at both but bites the proletariat to defend the proprietariat a reason
which, incidentally, explains why corporate criminals including top executives who, by
subtle processes, account for slow or sudden killing of large members by adulteration,
smuggling, cornering, pollution and other invisible operations, are not on the wanted list
and their offending operations which directly derive profit from mafia and white-collar
crimes are not visited with death penalty, while relatively lesser delinquencies have, in
statutory and forensic rhetoric, deserved the extreme penalty. (SCC p. 675, para 75)
There can be no doubt that death penalty in its actual operation is discriminatory, for it
strikes mostly against the poor and deprived sections of the community and the rich and
the affluent usually escape from its clutches. This circumstance also adds to the arbitrary
and capricious nature of the death penalty and renders it unconstitutional as being
violative of Articles 14 and 21.
Subsequently, this sentiment was echoed in Mohd. Farooq Abdul Gafur and Anr. v. State of
Maharashtra
52
, wherein the Court stated:
The situation is accentuated due to the inherent imperfections of the system in terms of
delays, mounting cost of litigation in High Courts and apex court, legal aid and access to
courts and inarticulate information on socio-economic and criminological context of
crimes. In such a context, some of the leading commentators on death penalty hold the
view that it is invariably the marginalized and destitute who suffer the extreme penalty
ultimately.
Moreover, a joint report prepared by Amnesty International India and People's Union for Civil
Liberties (Tamil Nadu and Puducherry) in 2008 titled "Lethal Lottery: The Death Penalty in
India" has also highlighted the disproportionate use of death penalty against disadvantaged
groups. The report observed:
The arbitrariness is fatal, but it is also selective and discriminatory. The randomness of
the lethal lottery that is the death penalty in India is perhaps not so random. It goes
without saying that the less wealth and influence a person has, the more likely they are to
be sentenced to death. This is implicit in the concerns expressed in Part II of this report
about access to effective legal representation (Section 7.1) as well as about pre-trial
investigations and collection of evidence (Section 6.1.1). The Supreme Court itself has
acknowledged the class bias in death sentences.

Arbitrary Exercise of Mercy Powers leading to Violation of Fundamental Rights of
Death Row Prisoners
In Shatrughan Chauhan
53
, while commuting the death sentence of fifteen convicts due to
inordinate delay in disposal of their mercy petition, the Court observed:

52
(2010) 14 SCC 641
53
(2014) 3 SCC 1
It is well established that exercising of power under Articles 72/161 by the President or
the Governor is a constitutional obligation and not a mere prerogative. Considering the
high status of office, the Constitution Framers did not stipulate any outer time-limit for
disposing of the mercy petitions under the said Articles, which means it should be
decided within reasonable time. However, when the delay caused in disposing of the
mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of
this Court to step in and consider this aspect. Right to seek for mercy under Articles
72/161 of the Constitution is a constitutional right and not at the discretion or whims of
the executive. Every constitutional duty must be fulfilled with due care and diligence,
otherwise judicial interference is the command of the Constitution for upholding its
values.
While awarding relief to the petitioners, the Supreme Court relied upon a long line of cases
where the Supreme Court has recognized that inordinate delay in disposal of mercy petitions by
the Governor or the President violate Article 21 rights of the death row prisoners which in turn
makes him entitled for the relief of commutation of death sentence to life imprisonment. The
Supreme Court in Sher Singh and Others v State of Punjab
54
held that Article 21 rights inhere in
a person so long as he lives and that they are relevant and applicable at all stages of the judicial
process: trial, sentence and execution of the sentence. The Court has held that in such cases, if
the delay is shown to be excessive and unjustified in the facts of the case, execution of the death
sentence would amount to harsh and inhuman punishment violating Art. 21, and the Court should
commute the death sentence. Further in Smt. Triveniben v State of Gujarat
55
, a Constitutional
Bench of the Supreme Court in a categorical ruling held as follows:
Undue long delay in execution of the sentence of death will entitle the condemned person to
approach this Court under Article 32 but this Court will only examine the nature of delay caused
and circumstances that ensued after sentence was finally confirmed by the judicial process and
will have no jurisdiction to reopen the conclusions reached by the court while finally maintaining
the sentence of death. This Court, however, may consider the question of inordinate delay in the
light of all circumstances of the case to decide whether the execution of sentence should be

54
(1983) 2 SCC 344
55
(1989) 1 SCC 678
carried out or should be altered into imprisonment for life. No fixed period of delay could be
held to make the sentence of death inexecutable and to this extent the decision in Vatheeswaran
case cannot be said to lay down the correct law and therefore to that extent stands overruled.
Invoking, this unique branch of death penalty law, the Supreme Court has in earlier cases too
have stopped the executions on account of delayed rejection of mercy petitions by the executive
authorities. In Mahendra Nath Das v. Union of India
56
, Madhu Mehta v. Union of India
57
, K.P.
Mohammed v. State of Kerala
58
, Shivaji Jaysingh Babar v. State of Maharashtra
59
, Daya Singh
v. Union of India
60
, and Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra
61
, the
Supreme Court prohibited the executive authorities from executing the death row prisoners.
4. CONCLUSION & SUGGESTIONS:
There has been a woeful lack of research on the issue of death penalty in India. The state of
research on the application of death penalty law by the judiciary is so inadequate that chances of
an informed and rigorous policy analysis on this issue are seriously impeded. A constitutional
challenge if and when taken up by the Supreme Court or a legislative change in the law will be
ill served in the present environment of lack of study on the issue. Some of the important studies,
which have ventured to assess the death penalty environment in India, are flagged below for
information.
In a pre-Bachan Singh empirical paper authored by Anthony Blackshield, the issue of
arbitrariness in award of death sentences was explored. The author showed through a study of 70
judgments of the Supreme Court between 1972 and 1976 that the award of death penalty in a
particular case is more a function of the views of the judge concerned on the subject rather than
the state of law or the facts of the case.
62


56
(2013) 6 SCC 253
57
1989) SCC (Cri) 705
58
1984 Supp (1) SCC 684
59
(1991) 4 SCC 375
60
(1991) 3 SCC 61
61
(1985) 1 SCC 275
62
A R Blackshield, Capital Punishment in India (1979) 21(2) Journal of the Indian Law Institute 137.
Another landmark study titled as Lethal Lottery: The Death Penalty in India brought out
jointly by Amnesty International, India and the Peoples Union for Civil Liberties charted the
gaps and weaknesses in the administration of death penalty in India since 1950. The report in its
analysis of Supreme Court decisions on death penalty recorded that the death penalty in India
has been an arbitrary, imprecise and abusive means of dealing with crime and criminals. This
report has been referred to by the Supreme Court in Bariyar, Mohd. Farooq Abdul Gafur, and
Swamy Shraddananda (2).
A recent study which was commissioned by the American Law Institute (ALI) has concluded
that the defects and unfairness inherent in the American death penalty system are so intractable
and intrinsic to its structural design that its reform is unachievable.
63
The Steiker Committee
report as it came to be called has made the ALI withdraw the stipulation on capital punishment
from its Model Penal Code.
The Model Penal Code stipulation on death penalty which was incorporated in 1962 was a
significant peg of the US Supreme Court decision in Gregg v. Georgia
64
, wherein the Court
reaffirmed the constitutionality of the death penalty in the United States. The US Supreme Court
cited the Model Penal Code provision to illustrate that there are ways to achieve constitutionally
secure death sentences. The Steiker Committee notes the failure of the reform initiatives in
relation to administration of the death penalty in following terms:
The foregoing review of the unsuccessful efforts to constitutionally regulate the death
penalty, the difficulties that continue to undermine its administration, and the structural
and institutional obstacles to curing those ills forms the basis of our recommendation to
the Institute. The longstanding recognition of these underlying defects in the capital
justice process, the inability of extensive constitutional regulation to redress those
defects, and the immense structural barriers to meaningful improvement all counsel
strongly against the Institutes undertaking a law reform project on capital punishment,
either in the form of a new draft of 210.6 or a more extensive set of proposals. Rather,

63
Report of the Council to the Membership of the American Law Institute on the matter of the Death Penalty, 4
(2009), available at http://www.ali.org/doc/Capitar/o20Punishment_web.pdf, visited on September 30
th
2014, at
6:00pm IST.
64
428 U.S. 153 (1976)
these conditions strongly suggest that the Institute recognize that the preconditions for an
adequately administered regime of capital punishment do not currently exist and cannot
reasonably be expected to be achieved.
It is to be noted that aspects of the rarest of rare doctrine as propounded in Bachan Singh were
also inspired by the ALI Model Penal Code provision on death penalty. Now that the Model
Penal Code provision itself stands withdrawn, it is imperative that a similar study to assess the
fitness of Indian system of death penalty against the constitutional standards is also undertaken.
Present attempt by the Law Commission to study the constitutional regulation of death penalty
amongst other related issues, to that extent, will fill an important academic void on this issue
65
.
In the light of the aforementioned, the issue of capital punishment provides the Law Commission
a very rich research terrain to engage with. The commission proposes to collect death penalty
related data from various Trial Courts, High Courts and the Supreme Court. Prison authorities
will also be requested for data on death row conditions. The commission may also involve
various law schools to conduct qualitative and quantitative research on various death penalty
themes.






65
Consultation Paper on Capital Punishment, Law Commission of India, available at
www.lawcommissionofindia.nic.in/.../consultation%20paper-capital%20p..., visited on october 1
st

2014, at 7:00pm IST.
BIBLIOGRAPHY:
PRIMARY SOURCE:
Indian Penal Code, 1860, published in 2013
The Code of Criminal Procedure, 1973, published in 2013

SECONDARY SOURCE:
Prof. T. Bhattacharyya, The Indian Penal Code, 7
th
edition, 2013, Central Law Agency,
Allahabad.
Dr. K I Vibhute, P S A Pillais Criminal Law, 11
th
edition, 2012, LexisNexis, Nagpur.
P. K. Das, Supreme Court on Rarest of Rare Cases, 11
th
edition, 2011, Universal Law
Pub Co. P. ltd., Delhi.
WEBLIOGRAPHY:
Consultation Paper on Capital Punishment, Law Commission of India, available at
www.lawcommissionofindia.nic.in/.../consultation%20paper-capital%20p...,
Prof. I. G. Ahmad, Death Sentence and Criminal Justice in Human Rights Perspective,
available at www.bhu.ac.in/lawfaculty/blj2006...09/.../2_Prof.%20I.G.Ahmad.doc,


.