Open Access Research Article
Discretionary Power Of Judiciaryin Rarest Of The Rare Case Doctrine
Published Paper
Article Details
Discretionary Power Of Judiciaryin Rarest
Of The Rare Case Doctrine
Authored By - Don Sabu
School Of Law
Christ University, Bangalore
I.
ABSTRACT
The "rarest of rare" doctrine in India gives
the judiciary significant discretionary power in determining whether to impose the death penalty for a crime.
This discretionary power has been the
subject of much debate and criticism, as it can lead to inconsistent and
arbitrary application of the death penalty. However, the discretionary
power of judges is an
essential component of the doctrine, as it allows
them to make nuanced judgments
based on the unique circumstances of each case. To address concerns about the
potential for inconsistency and abuse of power, judges must exercise their discretion carefully and
with a deep understanding of the principles underlying the "rarest of rare" doctrine. Clear guidelines should
be provided to judges on when the death penalty
should be imposed, and judges should receive adequate training and
support to help them make informed
and impartial decisions. The discretionary power of judges in the "rarest
of rare" doctrine is an
important aspect of India's criminal justice system. While there are concerns
about its potential for abuse, it is a necessary tool for ensuring
that the death penalty
is only imposed in the
most exceptional cases. To prevent the arbitrary application of the death
penalty, it is important for judges
to exercise their discretion carefully and with a deep understanding of the principles underlying the "rarest
of rare" doctrine.
Key words:
Doctrine, Arbitrary, Death
Penalty, Discretion, Judiciary, Criminal Justice System
II. INTRODUCTION
The
Death Penalty in India which is also knows as Capital Punishment is a legal
penalty in India which is executed to punish criminals
who have committed heinous crimes against
society. Under the concept of the death penalty the
application of the principle of the 'rarest of the rare case has been implemented. This simply depends
on the nature and gravity
of the crime committed. Certain
inhuman acts such as acts against the state, murder, rape, terrorism etc
such criminal acts that the perpetrator commits, he is often sentenced to death
as a means to secure
justice in the society.
The execution of the death
penalty in India is done
by hanging by neck until
death.
Article 72 of the constitution of India deals with the pardoning power of
the president of India which grants
him the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of
any person convicted of any offence. This paper does not deal with the perks of implementation of the death penalty
in India and that it acts as a deterrence to crime, however,
it condemns the implementation and the practice
of death penalty
in India as it is a gross
violation of article 21 of the constitution of India. Thus, the author contends that the
state does not and should not have the right to take away the life of an individual.
However, the author of the paper does not believe that criminal shall be
free, they must pay for their sins
hot through an alternative approach, that is is the reformative theory of
punishment. There is no proof as to whether
the existence of the death penalty is the reason for the decreased crime rate in the society there also is no
proof to state that the existence of the death pas death penalty deters an individual from committing crimes.
A prison is a correctional institution and with the
implementation of reformative and rehabilitative approach, a criminal can have
a second chance of living a life away from
violence.
The very fact that crime occurs is that the aggressor is a social deviant
and does not have mental ability in
society as a law-abiding citizen. The author firmly believes that they must
reform a criminal instead of
punishing him. The existence of death penalty is an extremely mentally exhaustive procedure where person suffers
from various psychological distress such as anxiety, depression and also has a
tendency to commit suicide.
To
prevent this, they are put in solitary confinement and this worsens the
existing situation and increases
their rate of committing suicide in prison. Another issue with prisoners on
death row is that they face extreme
torture in prison from their fellow inmates
and the prison guards. Furthermore, the Author firmly
believes that the existence of mercy petition
in India is yet again a traumatic procedure where the prisoner
plead to the president and awaits his fate; life or death. In this most of the mercy petition is
rejected and this leads the prisoner to have ever more animosity against
the
government. The main goal with the abolishment of death penalty
is to be able to help the prisoner to reform
himself with the guidance of the judiciary.
This would enable the prisoner to come to a realization of what deed
he/she has committed and repent for their crimes.
The 26204-law commission report on the death penalty
in India has firmly advocated for the abolishment of the
death penalty in India. The author firmly believes that the death penalty is barbaric in nature and
that man should not have the right to take away the life of another man no matter how socially deviant
he/she may be. The concept of life and death lay in the hand of God and it should continue to remain in the hand of
God and that it should not be decided
by man. Every man has free will and some may misuse
this free will by committing various acts of terror. In certain cases, with respect
to terrorism it mainly occurs due to religious indoctrination and due to economic, social and political reasons.
It is extremely evident while interacting with these individuals that
they were taken advantage of at a
young impressionable and vulnerable age and were used as a mere pawn to execute
a plan. They simply lack the ability
to differentiate between right and wrong and hence aren't at the right mental
state of mind as they were exploited from a very young
age. Hence, the implementation of the
death penalty does not bring justice to society and in no way acts as a
deterrent as there is no guarantee that by hanging
one culprit there won't be a 100 other in the near future. This dissertation exposes the lacunae in the Indian
judicial system and the fault in the criminal justice system in India with the existence of the death penalty which in turn leads to violation of the prisoners.
It
proposes that Article
21 is flawed in nature
by virtue of the right
to life not being absolute,
and the subsequent withdrawal
of this right by due process of law.
III. HISTORY
OF DEATH PENALTY IN INDIA
The
Indian Penal Code in 1861, which created the death penalty for murder was retained
at independence in 1947. The proposal
to ban capital punishment, which was articulated in the formulation of the Indi Constitution by many representatives of the Constituent Assembly between 1947 and 1949 but was not adopted into
the Constitution. Private members laws were introduced in Lok Sabha and Rajya Sabha for the abolition of the death
penalty in two decades, but none of them were passed. From 1950 to 1980, about 3000 to 4000 executions were recorded. The number of deh sentences and executions from 1980 to the
mid-1990s is more difficult
to measure. Two or three people are believed
to have been hanged every
year. The Supreme
Court decided in the 1980 Bachan Singh ruling that capital punishment should be enforced
only in "rare instances," but what constitute the rare is not explicit.)1
Capital punishment is an Antiquated punishment. Nearly every country in
the recorded history of man has
practiced the sentence at some point in time or the other, furthermore every
period in history has contained the use of capital punishment. In antiquity under the law of the Draco during
the Seventh Century BC, capital punishment was widely used for murder,
treason, incendiarism and rape in
ancient Greece. Plato argued that this punishment was to be used for the
unrepentant The Romans have used this
for a variety of crimes, even though at one-point men were exiled during
the empire for a short time as an alternative to capital punishment"2. This was noted by Sir Henry Marine said that "the Romans
did not remove death penalty since their non-use was primarily driven by the exile or the custom of exile and
questions prosecutions." This is also reflected in his findings".
1 Feberica Carugti, Gilllian K. Hadfield, Barry R Weingast, “Building Legal Order in Ancient
Athens” Journey of legal
analysis, Volume
7, Issue 2 Pages 291-324
(2015)
2 Raj Sethuraju, Jason Sole & Brian E. Oliver, Understanding Death Penalty Support
and Opposition Among Criminal Justice
and Law Enforcement Students, Volume
6 SAGE Open 215824401562495 (2016)
IV. POSITION
IN INDIA
India
has rejected a UN resolution demanding that the death sentence should be placed
on a moratorium because it is
contrary to the Indian legislative law and to the sovereign right of each nation to develop
its very own judicial system.
In India, for the most serious crimes,
death penalty is given. It is giving only very serious
and atrocious crimes
of a great magnitude. According
Article 21, no one is to be stripped
of the "right to life" granted to any d national. Numerous crimes
such as criminal planning, assassination, w against the army, mutiny,
murder dacoity and counterterrorism a death
penalty under the Indian Penal Code.
are subjec
In the case of death penalty, the president has the power to allow for m
The Court held that the death
sentence should only be awarded in very instances, as in the case of Bachan
Singh vs. State of Punjab.3
Furthermore, only the President has the authority to waive the death penal and
offer mercy In cases of death
penalties, the President alone has the authority to g mercy. The Court of appeal
(which is the High Court of a state) must confine that a convict
was convicted of death in a case by the Court of Sessions. the Supreme
Court appeal fails by the convict, he may present the President of India with a mercy petition. State shall follow
step by step instruction on the legal process
for handling mercy calls from or on behalf of convicted of death penalty "4.
The Ministry of Home Affairs shall
recognize petitions to the Supreme Court and applications for special permission to refer these convicts to that
Under the terms of Article 72 of the Constitution, Only the President has authority either to
extend or suspend or remit the sentence of any pers convicted for an
offence, reproach, parole or remission.
V.
DOCTRINE OF THE
“RAEST OF RARE”
The
"Rarest of Rare" Doctrine was propounded in the landmark case of
Bachan Singh V State of Punjab, the
apex Court of India ruled that the death penalty should only be issued in
exceedingly rare circumstances.5 This decision was strongly supported by the Supreme
Court in trying to limit
3 Bachan Singh vs. State of Punjab,
AIR 1980 SC 898. (Supreme
Court of India 1980)
4 Constitution of India,
Article 72
5 Bachan Singh vs. State of Punjab, AIR 1980 SC 898, (Supreme
Court of India:
198 (Y Chandrachud, A Gupta, N Untwalia, P Bhagwati, R Sarkaria).
the use of criminal
punishment. In Bachan Singh the Ratio Decidendi
air Rule of Law enforced
by the Apex Court is that the death penalty
should be constitutional if it offers
a way of replacing life imprisonment.6
And in the most rare case the same is valid if the alternative is undoubtedly excluded.
The Supreme Court has stated that in the case of Santosh Kumar Bariyari Vs. The State
of Maharashtra, "the unusual rare maxims precedent in implementing
the provisions of Section 354(3) of C maintaining a principle of the law of life and death
penalty.7
According to Art 21 of the Constitution (of India), no person shall, except by proper process, be deprived of their "right to live." If the sentence
of death is applied then it also restricts
the degree to which new
facts or laws are enforced in the case. It is irreversible if the sentence is
executed The argument for death Sentence in India is based on the theory or principle
that has been stated in Bachan Singh V. State of Punjab,
which is the rarest of rare test. Moreover, in the decision
held in Machi Singh & Others Vs. The
State of Punjab-The Three Judge
Court upheld Bachan Singh's decision and declared that it could
only be issued
where, in very rare cases, the public and society
at large feel that the judicial authorities are required to enforce death penalties. It can be done so in
the following cases.8
(a)
where the murder
is perpetrated in a particularly violent, revolting or indignant manner
in
order to stir up severe outrage from the
public or
(b) When a Scheduled caste person's murder is perpetrated that provokes community anger
or in the event
of bride or woman being
burnt or killed
for dowry,
(c) When the victim of murder is- An Innocent
child, A vulnerable Women or a person rendered unaided
by mature age or illness”.9
6 Santhosh Kumar Satish Bariyar
Vs State of Maharashtra, 2009 6SCC 498 (Supreme Court Of
India:2009)
7 Santosh Kumar Satish Bhushan Bariyar
vs State Of Maharashtra, 2009 6 SCC (Supreme Court of India: 2009).
8 Machhi Singh And Others vs State Of Punjab, 1983 AIR 957, (Supreme Court of India 1983)
9 id at 6
VI. UNDERSTANDING RAREST OF THE RARE
The
Question then becomes what exactly is an unusually rare case. As in the
decision held in Macchi Singh10,
the court set out certain condition for deciding when a case will fall within
the rarest of rare. Analysis of the parameters as below:
1.
Manner of murder commission-When the crime is perpetrated in an excessively violent, ludicrous, malevolent, repulsive, or manner to arouse the community's deep and severe wrath.
2.
If the house or dwelling place of the victim was set on fire
with the intention of causing him suffering
through being burnt alive, alternatively if the party who is the victim
underwent torture which resulted in his death, if the body of the victim was disfigured maime
1. If the
killer's motives were depraved, or cold blooded, strategically planned to
profit from the murder
2. If the nature of the crime is
against public and societal morality,
3.
If the
weight of the crime is so great, where multiple human being loses their lives
4. If the
party who is the Victim is helpless, and frail and was at the mercy of a
killer, such as the depraved murder of a child the murder of a frail person etc.
The
Legality of death penalty was affirmed by the Apex Court in its decision in
Jagmohan Singh vs. The State of Uttar Pradesh
on grounds that it is ne just a disincentive but a testament to society's disapproval. In the case of Bacchan
Singh, the constitutionality was reaffirmed. The following suggestions have therefore arisen from the case of Bacchan
Singh.
1) The ultimate
phase of the death penalty
cannot be enforced unless the culpability is severe.
10 Id
at 8
2)
The circumstances of the defendant
must be taken into consideration prior to opting
out of capital punishment. (Circumstances that aggravate and mitigate)
3)
The death sentence
and the constitution are exceptions to life imprisonment. In other terms,
only if life imprisonment is
inadequate, in view of particular circumstances of offense, should a death sentence
be imposed.
4)
An outline of all the aggravating and mitigating" conditions is required and mitigating circumstances must be completely weighted so that an equilibrium can be reached between
them.
The
cases involving an abnormal offense which is odd to a sensible citizen or
anyone in a reasonable mind in
society, as well as the lack of appropriate punishment for the crime, were similar
to what the Court eventually
described as the rare situation
6
As any other subject, the evolution of the doctrine of the rarest of rare
is not free of academic criticism.
Most commentators indicated that a view is highly ambiguous and subject to
different interpretations of this teaching
A
strong critique arose from Justice Bhagwati himself, who, in his disagreeable
view, warned of saying that
"this test would lend credence to a larger amount of arbitrariness in
decision-making and determine whether individual
will live or die depending on the makeup of
the bench."
The decisions made on this doctrine were also argued that they are
wrongly taken. For example, the Supreme
Court described it as a very unusual
a deadly situation if an individual, accused of the fidelity
of his wife secede her head and murdered her. Here the Amruta v. Maharashtra
case is relevant in the context
where, even when there were identical facts as stated above the court refrained from giving the death sentence.11
11 Ex
rel. Bhaeru Singh v. State of Rajasthan, 1994 2 SCC 407, (Supreme
Court of Inde 1994). Drew from the case of Macchi Singh v. State of Punjab (Id., at 33.)
The
court ruled that a deliberate, cold-blooded and barbaric murder of a very
delicate child after committing rape on her certainly falls
into the rarest
category of rare. But in the Kumudi lal case,"is a case which
involved the 38 rape and the murder
of a 14-year-old girl, the court declined
to uphold the death sentence. A child of 2nd grade
was brutally raped in the case of Am Singh v. State of Punjab. She later died from excessive bleeding. Both jury and
the High Court convicted the murderer and sentenced him to death
under section 302. But the Supreme Court ruled that although the attack
w violent the murder was not
deliberate.12
It
was held in Jagmohan and Bacchan Singh, both Constitutional Benches refused to
create a standard categorization where, despite the strong pleas from appearing
counsel, the rarest of rarest
doctrines could be appealed. The Court stated in Jagmohan
that, in order to ensure the best security possible of the parties involved, the development of specifications does not serve any purpose.
The dissenting opinions
of Bhagwati have been the most critical
of all. J. He made a key argument, and that it is a matter of fact to
characterize the crimes as "gruesome," "cold-blooded,"
"brutal," etc. Factors which a judge finds relevant may therefore not be relevant
for others
The National Law University has a Death Penalty Centre which conducted
research into criminal justice
mechanisms and systems in India and its correlation to the death penalty in
India, this was conducted by nearly
60 43 former judges of the Supreme Court. "For a significant number of judges, the unusual one was based on the
definition or clarification of crimes alone and had little to do with a judicial review involving'
unqualified forbidding the right of life imprisonment," the study said. After consultation with the 60
previous judges who had awarded 208 cases of death penalty at various points over the period 1975-2016, this detailed
report was released.
These reports show that there was no consistent interpretation of the
criteria of uncommon rare doctrine,'
Senior Counsel Rebecca John said during seminar, after the publication of the
report. "Despite unusual death
penalty of rarest of the rare doctrine as provided by Bacchan Singh's Supreme
Court.
VII.
ABOLITION OF THE DOCTRINE
OF
RAREST OF RARE
Since
the concept of Unusually Rare is not per se is not defined by statute,
confusion arises every time the
Court provides death penalty. In some cases, the perpetrator has attempted rape
and murder and was given the death
penalty, but the accused has not earned the sentence of death for other situations
with specific evidence and circumstances.13
The variation that contributed to a discrepancy in these sentences is
extremely difficult to find-"is this
the crime? Or the delinquent? Or the magistrate? The court was of the opinion
that it will put the country at increased risk by removing altogether the principle of death penalty.
To
encounter these extreme conditions, India has not yet become a nation
appropriate. The procedure should
be based on morality but rather it has become
focused on the judge. To maintain this
principle, the judiciary hast
consider certain elements that clean up the fog"
In its 262nd report (August 2015), the Law Commission Report for 2015
proposed abolishing the definition
of the death penalty for all crimes related to non-terrorist activities, which
were not meant to protect national
security its previous
review during 1967, the Commission found that the "experiment during
abolishing capital punishment" could not be put at risk by India. Nonetheless, of 2015"15, "the Commission thinks it is time for
India to continue with abolishing the death penalty".
Although death sentences
are seldom enforced
in India, the commission has proposed the elimination of the
penalty. There were the following
reasons given by the commission:
1.) The circumstances
changed.
2) It does not Deter.
3.) The justice system
in India is flawed.
VIII.
RATE OF EXECUTION AND COMMUTATION OF CAPITAL PUNISHMENT IN INDIA
The
principle of the death penalty is prevalent over India, but from 1998-2018
there were only seven executions. A
total to 1303 capital punishment judgements were issued between 2004 and 2013, but between this time only 3
convictions were executed. Only one individual was executed between
2004 and 2012. In the last
20 years, there have been a total
of 3751 death sentences.
Yakub and eleven others were sentenced to death in July 2007. The 1993
bombing in Mumbai, which slaughtered
up to 260 people and injured several others,
was organized or executed by special court.
During the commutation of the death
penalty of 10 people, the SC upheld
Memnon's death sentence in
March 2013, while one died later. In the last 19 years there were just 4 people hanged
to death and in Nirbhaya in February 2020 the Four convicts face execution.
IX. COMMUTATION OF DEATH PENALTIES
The Constitution of India u/A161 & 72 empowers the governor or President of any State and India
to grant or revoke, refer or mitigate the imprisonment of any person
convicted of any crime, for any parole,
reprieves, release or revocation of sentence 12.
(a)
in all situations where the punishment or sentencing
is convicted ordered to be enforced by the
Court Martial;
(b)
furthermore, all cases in which the application of punishment or a sentence
is levied for a breach
of any statute in respect of an issue to which the Union / Status
executive powers extend; Legi proceedings.
The verdict must only be made by a high court when death penalty is issued by a majority
(trial) of a court over
finalize it.
The inmate has the privilege of appealing to the Supreme Court once he is
confirmed by the High Court. If that
is not possible, the person convicted of this case can give a petition
"mercy" an application can be made to the Sovereign head of state who is the president
of India, additionally
an
appeal can be made to the state Governor this is in case the Supreme Court
refuses or fails to hear the appeal. The prisoner has the right
of appealing to the Supreme
Court once the High Court
has admitted it. If this cannot happen
or if the Supreme Court declines or fails to accept the appeal the person convicted can give the President of India and the Governor
of the State a' mercy petition. The legislative powers of the President
and Governors today derive from the old Government of India Act which was passed in 1935, but in relation to the
Governor General there are no prerogative clemency
rights of the President and Governors of independent Indians.
Procedure for deployment Hanging and Shooting are the prescribed methods of execution under the CrPC.
X.
CONCLUSION
At
the heart of the "rarest of rare" doctrine is the idea that the death
penalty should be imposed only in the
most exceptional circumstances. This means that judges must use their
discretion to carefully consider
the specific facts and circumstances of each case.
They must weigh factors such as
the nature and gravity of the offense, the character of the offender, and the
impact of the crime on society.
The discretionary power of judges
is an essential component of the doctrine,
as it allows them to make
nuanced judgments based on
the unique circumstances of each case.
However, the discretionary power of judges
in the "rarest of rare" doctrine has been the subject of much criticism. One concern is that the discretionary power of judges can lead to inconsistent and arbitrary application of the death penalty. There is a risk that judges may impose the death penalty
in some cases but not in others, even where the facts and circumstances
are similar. This can undermine the fairness and credibility of the criminal justice system.
Another concern is that the discretionary power
of judges can be abused
by those in power. There
is a risk that judges may be influenced by political or social factors
when making decisions about the
death penalty. For example, judges may be more likely to impose the death
penalty in cases where the crime has
received significant media attention, or where there is public pressure to do so. This can lead to the death penalty
being imposed in cases where it is not justified, or where there are doubts about the guilt of the accused.
To
address these concerns, it is important to ensure that judges exercise their
discretion carefully and with a deep
understanding of the principles underlying the "rarest of rare"
doctrine. Judges must be aware of the
risk of inconsistency and arbitrariness and strive to make consistent and fair decisions in each case. They must also be aware of the risk of
abuse of power and strive to ensure
that their decisions are based solely on the facts and circumstances of
each case, rather than political or social considerations.
One way to ensure that judges exercise their discretion carefully is to
provide them with clear guidelines on when the death penalty
should be imposed.
The Indian Supreme
Court has provided
some guidance in this regard,
stating that the death penalty
should be imposed
only in cases where the alternative sentence of life
imprisonment would be inadequate. The Court has also held that the death penalty
should be imposed
only in cases where the offense is of such exceptional gravity
that it shocks the conscience of society.
Another way to ensure that judges exercise their discretion carefully is
to provide them with adequate training
and support. Judges must be trained to understand the legal principles underlying the "rarest of rare" doctrine
and to apply them consistently and fairly. They must
also be provided
with support and guidance from senior judges and legal experts to help
them make informed and impartial decisions.
Article Information
Discretionary Power Of Judiciaryin Rarest Of The Rare Case Doctrine
Authors: Don Sabu
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/04
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.