September 17, 2021

Rarest of Rare Doctrine


While there is perplexing subjectivity in the imposition of capital punishment in India, the death penalty has been abolished totally in 104 nations and de-facto in 29 others (meaning no execution of any person has been carried out in the last 10 years).[1] Indian laws do not have a consistent stance on capital punishment, but they also do not totally prohibit it. The Indian Penal Code 1860 recommends offences chargeable with the death sentence, such as Section 121 (taking up arms against the state), Section 302 (murder), Section 364A (kidnapping with ransom), and so on[2]. Fear-based oppression and assault-murder cases are two of the most well-known cases involving prominent death row inmates. The ‘rarest of rare doctrine’ can be broken down into two sections: Aggravating and mitigating circumstances: In the case of aggravating circumstances, the Judge may impose capital penalty at his discretion; however, in the case of mitigating circumstances, the Bench will not grant capital punishment unless in the rarest of cases.

There is no one-size-fits-all formula for applying the “rarest of rare theory.” In a criminal case, the trial is divided into two parts: the nature and gravity of the offence. The severity of the penalty can be calculated based on the two essentials. The Indian judiciary has made a vow to find some type of balance between aggravating and mitigating circumstances on the one hand, and public outcry on the other, and to add that the grounds must be exceptionally good such that the death penalty is the only alternative left. The Supreme Court has just upheld the death penalty for the perpetrators of the Nirbhaya rape-murder case,[3] describing it as a “rarest of rare” case in which “outrageous discipline” is given for the sake of ensuring equity. In India, the “rarest of rare” regulation is used to determine whether or not the death penalty should be applied.

Starting of the ‘rarest of rare doctrine’

The case of Nathuram Godse v Crown[4] (Assassination of Mahatma Gandhi) is the most prominent example of the rarest of rare nature that occurred in free India. Nathuram Godse shot Mahatma Gandhi in a petition meeting at Birla Mandir in Delhi on the night of January 30, 1948. After a lengthy preliminary hearing, Justice Amarnath sentenced him to death, which was unanimously upheld by the Punjab High Court’s three adjudicators. In Kehar Singh v Delhi Administration,[5] the Supreme Court upheld the death penalty imposed by the trial court and upheld by the High Court against the three appellants Kehar Singh, Balbir Singh, and Satwant Singh for plotting and executing the murder of Smt. Indira Gandhi under sections 302, 120B, 34, 107, and 109 of the Indian Penal Code. The court ruled that the homicide is the rarest of rare occurrences in which a professional killer and his schemers deserve exceptional punishment.

Working of the doctrine

The Supreme Court declared in Maneka Gandhi v Union of India[6] that the death penalty can only be applied in exceptional circumstances. It is a one-of-a-kind punishment that will be applied only with special reason and must be appropriately administered by the High Court.

In Rajendra Prasad v State of Uttar Pradesh,[7] Justice Krishna Iyer observed that “If the murderous operation of a die-hard criminal jeopardises social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated.”[8]

There have been various challenges to the death penalty’s validity, and the judgement in Bachan Singh v State of Punjab[9] is the key in this regard, as it upholds the death penalty’s legitimacy under Section 302 of the IPC. In this case, the Supreme Court established the “rarest of rare cases” test, which must be met in order to grant the death penalty.
In this decision, the Supreme Court sought to eliminate a theory that applied only to crimes punishable by death, in order to reduce judicial ambiguity over when to use the harshest penalty available. The Supreme Court maintained the death sentence’ legitimacy by a 4-1 vote, and established a concept that the death penalty should only be used in the “rarest of rare circumstances.” The extent of this statement, however, was left undefined. The Bacchan Singh case’s Ratio Decidendi is that capital punishment is holy if it is authorized as a punishment option for homicide and the ordinary sentence suggested by law for homicide is indefinite detention. This means that capital punishment must be imposed in the rarest of circumstances if there is no other option.

Later, in Macchi Singh v. State of Punjab,[10] the court attempted to establish standards for determining whether a crime was among the rarest of rare. In the Macchi Singh case, the court established explicit guidelines for determining when a case qualifies as rarest of rare.

The following models are determined

  1. Method of homicide commission- when a homicide is committed in an incredibly violent, detestable, revolting, or unforgivable manner in order to elicit exceptional and extraordinary outrage from the network;
  2. When the victim’s house is set on fire with the aim to prepare him alive.
  3. When the victim is subjected to cruel deeds in order to realize his or her death.
  4.  When the victim’s body is ruthlessly assaulted or hacked into pieces.
  5.  Justification for committing homicide when the cognitive processes behind a homicide are pure depravity and barbarism.
  6.  The conduct is of a socially reprehensible nature: When a homicide of a person belonging to one of the regressive classes is reported.
  7. The size of the wrongdoing when the scale of the wrongdoing is massive, such as in cases of many homicides.

The Supreme Court declared in Santosh Kumar Bariyar v. State of Maharashtra[11] that the “rarest of rare dicta serves as a guideline in executing Section 354(3) and sets the principle that life imprisonment is the rule and death sentence is the exception.” The death penalty was once mandatory in India under section 303 of the Indian Penal Code. In any case, the Supreme Court declared section 303 ultra vires the Constitution in Mithu Singh v State of Punjab[12] in 1983, claiming that it violates articles 14 and 21 of the Constitution.

The case of Prajeet Kumar Singh v. State of Bihar[13] was decided in 2008, and the court ruled on what would be considered a “rarest of rare case.” The Court decided that a death sentence would only be given when a murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

Application of the doctrine

The formulation of rarest of rare, just like any other subject, is not free from criticism by others. Many critics have argued that this idea is extremely vague and open to various interpretations. In his dissenting opinion, Justice Bhagwati expressed concern, noting that such a criterion would lead to more subjectivity in decision-making and would make the decision of whether a person should live or die reliant on the composition of the Bench. He claims that the fact that an offender’s life is depending on the decisions of a judge is a clear violation of Article 14 and 21 of the Indian Constitution’s Fundamental Rights.[14]

It has also been claimed that judgements concerning this philosophy are made randomly. For example, when a man suspected his wife of infidelity cut her head and killed her, the Supreme Court had no hesitation in classifying the case as one of the rarest of rare cases and imposed death. The case of Amruta v. State of Maharashtra[15] is instructive in this regard, as it is a case in which the court declined to grant death penalty despite the fact that the facts were comparable to those in the above-mentioned case.

The court concluded that the deliberate, cold-blooded, and cruel murder of a little girl after committing rape on her was unquestionably among the rarest of rare acts. But the court refused to confirm the death sentence in Kumudi Lai v. State of Uttar Pradesh[16], a case involving the rape and murder of a fourteen-year-old girl. In the case of Amrit Singh v. State of Punjab,[17] a second-grade girl was violently raped. She died as a result of the heavy bleeding. The accused was found guilty under section 302 and sentenced to death by both the trial and high courts. Despite the brutality of the rape, the Supreme Court held that the death was not deliberate. Despite strong arguments from the appearing counsels, the two constitution benches in the instances of Jagmohan[18] and Bacchan Singh refused to develop a systematic classification of cases where the theory of rarest of rare may be applied. In Jagmohan, the Court ruled that establishing norms would serve no purpose, and that instead, judicial discretion should be used to ensure the safest possible safeguard for all parties involved.

Bhagwati’s opposing opinions contained the most vehement criticisms. He brought up an important point: characterizing a crime as gruesome, cold-blooded, violent, and so on are not black-and-white terms that are applied uniformly by all judges. As a result, factors that are important to one judge may not be important to others.[19]

The Centre on Death Penalty at NLU released a report on the criminal justice system and the death penalty in India, which included an opinion study with 60 former Supreme Court judges. “For a significant number of judges, the rarest of the rare was based on categories or description of offences alone and had little to do with judicial test requiring that the alternative of life imprisonment be ‘unquestionably foreclosed,”[20] the report said. The thorough analysis was produced after 60 former judges were consulted, each of whom had adjudicated 208 death penalty cases at various times between 1975 and 2016. “Despite rarest of rare doctrine in death penalty as laid down by the Supreme Court in the Bacchan Singh case, the report shows that there existed no uniform understanding of the requirements of rarest of rare doctrine,” senior advocate Rebecca John said during a panel discussion following the report’s release.

Is “rarest of rare” doctrine” being followed by the trial courts?

However, in a considerable percentage of cases, the method in which the death penalty is administered raises major concerns. Is the doctrine of the “rarest of rare” being applied in Indian courts? Because not all inmates sentenced to death in India are executed, the question becomes much more pressing.

Despite the “rarest of rare” doctrine, which limits the scope of capital punishment, the number of death sentences handed down has been relatively high.

According to The State of Death Penalty in India 2013, a report by the Asian Centre for Human Rights (ACHR), Uttar Pradesh topped the list with 370 death sentences, followed by Bihar (132). But sentences for 4,321 convicts were commuted from death penalty to life imprisonment during this period. During this time, however, 4,321 convicts’ death sentences were commuted to life imprisonment. Of course, this included a large number of offenders who were sentenced to death before to 2001.

The city with the most commuters – 2,462 — was Delhi, followed by Uttar Pradesh (458). Thousands of criminals, however, remain on death row.[21]

Huge gap between death sentence and actual execution

According to data, there is a significant discrepancy between death sentences handed down and executions carried out. Between 2001 and 2011, according to an ACHR analysis based on National Crime Records Bureau (NCRB) data, multiple death sentences were issued, but only a few were carried out. Indian courts awarded death penalty to 1,455 convicts from 2001-11, an average of around 132 convicts per year. But an overwhelming number of death sentences were commuted to life imprisonment during this period.[22]

Dhananjoy Chatterjee (2004), who was hanged for the murder and rape of a 14-year-old girl in Kolkata, was the only criminal executed during this time. This was the country’s first execution since Auto Shankar, a serial killer, was executed in Salem, Tamil Nadu, on April 27, 1995. From 2001 to 2011, Indian courts sentenced 1,455 criminals to death, an average of 132 per year. During this time, however, a large number of death sentences were commuted to life imprisonment.[23]

Following then, only three people have been executed: Ajmal Kasab, a suspect in the Mumbai terror attack case, in 2012, Afzal Guru, a suspect in the Parliament attack case, in 2013, and Yakub Memon, a suspect in the Mumbai serial explosions case, in 2015.

International conventions on Death Penalty

No human being shall be arbitrarily deprived of his or her life, according to Article 6 of the ICCPR. It also states that in countries that have not abolished the death penalty, it may be imposed only for the most serious crimes, in accordance with the law in force at the time of the crime and not in violation of the provisions of the present Covenant and the Convention on the Prevention and Punishment of Genocide. The United Nations Convention on the Rights of the Child expressly outlaws the death penalty for minors. States should gradually reduce “the number of offences for which capital punishment may be imposed, with a view to the desirability of abolishing this punishment in all countries,”[24] according to Article 3 of the Universal Declaration of Human Rights.

The United Nations Economic and Social Council reaffirmed that the death sentence should be reserved for the most serious offences, and stated that the scope of these crimes “should not go beyond intentional crimes with lethal or other extremely grave consequences”[25]. Article 4(4) of the American Convention on Human Rights states that the death penalty shall not be inflicted “for political offences or related common crimes.”[26]

 Position in England

The imposition of the death sentence, in general, has been abolished by the Murder (Abolition of Death Penalty) Act, 1965 other than four offences namely:-

  • Treason
  • Capital and repeated murder
  • Piracy with violence
  • Setting fire to her Majesty’s ships

The Judge has no choice but to impose the death punishment for the first two types of offences. The remaining two offences have been left to the Judge’s discretion. A minor or a pregnant woman cannot be hanged to death, according to the acid rule.

 Position in United States

In the case of a death sentence, the United States makes an interesting divergence from the global tendency. It was abolished for four years, from 1972 to 1976, when the United States Supreme Court ruled in Furman v Georgia[27]. However, in 1976, the Supreme Court overruled its earlier decision in Gregg v Georgia[28], reaffirming the death penalty’s constitutionality. As a result, 35 of the 50 states have reintroduced the death penalty in their respective states.[29]

 Position in South Africa

Makwanyane v Muhunu[30], one of the earlier rulings, banned the death penalty under section 277 of the Criminal Procedure Act, 1927, as it was incompatible with the country’s new interim Constitutions. When the petition was granted, each of the Court’s eleven judges wrote distinct reasons to back their unanimous decisions. The death sentence is cruel, inhumane, or degrading treatment or punishment, according to ten of the eleven judges. The UDHR defines an individual’s right to life protection and declares that no one shall be subjected to degrading or cruel punishment. The United Nations General Assembly has determined that capital punishment violates two core human rights.

Should the Doctrine of Rarest of Rare be abolished in India?

The problem arises each time the Court grants the death penalty because there is no statutory definition of what Rarest of Rare entails. There have been occasions where the accused has committed both rape and murder and been sentenced to death; nevertheless, there have been other cases where the facts and circumstances are similar but the accused has not been sentenced to death. It’s difficult to pinpoint the variation that has resulted in these disparities in sentencing “Is it the crime? Or the criminal? Or is it the Judge?

According to the writers, entirely abolishing the death penalty would put the country in jeopardy. India has not yet developed to the point where it is capable of experiencing such harsh conditions. The doctrine was supposed to be society-centric but it has, rather, become judge-centric. If the Judiciary wants to keep this doctrine, they need to ascertain specific elements on the basis of which the fog gets cleared.


Some of the conclusions and recommendations for this issue are as follows –

  1. It is necessary to establish standardized guidelines – A uniform guideline should be established that includes the criteria by which cases can be classified as the rarest of the rare. This may help to remove the fog that has accumulated in the minds of diverse jurists, resulting in confusion.
  2. The decision must be made with care and reason – While the accused has committed a heinous act, it must be kept in mind that, even if the accused has committed a heinous act, if there is any chance that the accused will not cause further harm to society, the accused should not be sentenced to death.
  3. The death penalty should not be postponed after it has been imposed – The Supreme Court ruled in Triveni Bai v. State of Gujarat[31] that the execution process must be postponed for reasonable grounds so that the accused might receive a fair trial. However, it is recommended that no time be wasted when the death penalty has been imposed. This is not to say that the accused should not have the right to appeal, but it should only be available for a limited time.
  4. The death penalty must not be imposed in haste – Before imposing capital punishment, the constitutional bench must thoroughly examine all aspects of the case and guarantee that it is not imposed in hurry.
  5. The penalty should be proportionate to the offence – The severity of the crime committed must be taken into account while applying the death penalty. Petty offences should not be punished with the death penalty. It must be proportional to the severity of the deed in order to instill dread in future perpetrators, acting as a deterrent and preventing them from committing such a horrible crime.

[1] Rashi Vaishya, The Doctrine of rarest of the rare, LEGAL SERVICE INDIA (Jul. 13, 2021, 4:45 PM),

[2] Ibid.

[3]Mukesh and Anrs. v. NCT Delhi (Nirbhaya Case)(2017) 6 SCC 1.

[4] Nathuram Godse v. Crown, 1949 CriLJ 834.

[5] Kehar Singh & Ors v. State (Delhi Admn.), 1988 AIR 1883.

[6] Maneka Gandhi v. Union of India, 1978 AIR 597.

[7] Rajendra Prasad v. State of Uttar Pradesh, 1979 AIR 916.

[8] S Jyotiranjan, Is capital punishment enough deterrence?, THE PIONEER (Jul. 13, 2021, 4:49 PM),

[9] Bachan Singh v. State of Punjab, AIR 1980 SC 898

[10] Macchi Singh v. State of Punjab, 1983 AIR 957.

[11] Santosh Kumar Bariyar v. State of Maharashtra  (2009) 6 SCC 498.

[12] Mithu Singh v. State of Punjab, 1983 AIR 473.

[13] Prajeet Kumar Singh v. State of Bihar, Appeal (crl.) 1621 of 2007.

[14] Supra note 2.

[15]  Amruta v. State of Maharashtra, AIR 1983 SC 629

[16] Kumudi Lai v. State of Uttar Pradesh, (1999) 4 SCC 108

[17] Amrit Singh v. State of Punjab, (2007) 1 SCC (Cri) 41

[18] Jagmohan Singh v. State of U.P, AIR 1973 SC 947

[19] Supra note 2.

[20] Ibid.

[21] Satya Prakash, Death penalty: ‘Rarest of rare’ cases are not so rare in India now, HINDUSTAN TIMES (Jul. 13, 2021, 4:15 PM),

[22] Ibid.

[23] Ibid.

[24] Soma Sarkar, Rarest of Rare Doctrine, LAW TIMES JOURNAL (Jul. 13, 2021, 6:45 PM),

[25] Ibid.

[26] Ibid.

[27] Furman v. Georgia, (408)US238(1972).

[28] Gregg v. Georgia, 428US195(1976).

[29] Supra note 25.

[30]  Makwanyane v. Muhunu, (1995)16HRLJ133

[31]Smt. Triveniben & Ors. v. State Of Gujarat & Ors., 1989 AIR 1335

Author- Sanjana Shikhar