DAMODARAM SANJIVAYYA

NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

NAME OF THE TOPIC: -

TO BE HANGED TILL DEATH: AN INQUEST ON THE REASONABILITY
OF RAREST OF RARE V. PUBLIC TRANQUILITY

NAME OF THE SUBJECT

CRIMINAL LAW

NAME OF THE FACULTY

ASST PROF. DR. V. SUNITHA

NAME OF THE STUDENT

SHEIK SHINY HANEEFA

ROLL NO & SEMESTER

21LLB109
3rd SEMESTER

1
 ACKNOWLEDGEMENT

I would like to express my heartfelt gratitude to our respected Criminal Law Professor, Asst
Prof. Dr. V. Sunitha, for providing me with the opportunity to work on this project titled
"To be hanged to death: an inquiry on the reasonability of the rarest of rare v. public
tranquillity". I did my best to collect project information in as many different ways as
possible in order to provide a clear picture of the specified project topic.

Thank you

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 ABSTRACT

The discussion about the death penalty is the one that is most relevant to society today,
considering the realities of the twenty-first century. The Indian State's criminal justice system
includes the death sentence as a necessary component. The human rights movement is
becoming more powerful, and the very existence of the death sentence is being questioned as
immoral. Keeping one person alive at the expense of another, however, makes this a
ridiculous argument. The lives of numerous members of the society or alleged victims are
unimaginable and at danger. That is morally repugnant. The international use of the death
penalty is a contentious issue. In this case holds a distinct viewpoint. Several nations have
prohibited it. On the other hand, it is seen as a solution to the ongoing threat to society. The
United Nations declares the death penalty to be barbaric and immoral and forbids it in all
forms. Despite being a party to UN conventions, India has never supported a global
prohibition on the death sentence.

India limits itself to executing the death sentence clauses of UN resolutions. The death
sentence is a serious sort of offense under several provisions of Indian law. India limits itself
to executing the death sentence clauses of UN resolutions. The death sentence is a serious
sort of offense under several provisions of Indian law. In this paper, we've looked at several
case laws in an attempt to determine the rationale for the category of "rarest of rare." The
theory that the rarest of the rare are vague is proven in a case where a person receives a death
sentence for a crime while another case where the same offence is committed results in a life
sentence for the accused.

This paper aims to examine and clarifies the compelling arguments for why the death penalty
should exist in order to preserve the peace and tranquillity of society as a whole. Also this
study, we will discuss how the application of the rarest of rare doctrines is fading in awarding
the death penalty as most of the courts are considering the public peace and tranquillity
instead of the facts and circumstances of the case. This paper goes on to explain the various
checks and balances available, which ensure that no innocent person is condemned while at
the same time ensuring that no person who is guilty of the most heinous crimes is allowed to
go free, in contrast to the common belief that an innocent person may be sent to the gallows
by false conviction.

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 SYNOPSIS

OBJECTIVE – The following are the main objectives of this study:

1. To identify on what basis the judges use to award death penalty in the rarest of rare
cases.
2. To know whether the discretionary powers of the judges are bound to exercise in
accordance with the public peace and tranquillity.
3. This study examines the reasonability of the death penalty in the rarest of rare cases
with the help of various cases.

SCOPE OF THE STUDY – This scope of the study is restricted to the areas of rarest of rare
doctrine, capital punishment and public peace & tranquillity.

SIGINIFICANE OF THE STUDY – This study helps in understanding the reasonability of

awarding death penalty in rare of rare case and its impact on public peace and tranquillity.

RESEARCH METHODOLOGY – In this study doctrinal method has used.

LITERATURE REVIEW -

Primary Sources:

1. Indian Penal Code, 1860, Lexisnexis.com

2. Indian Evidence Act, 1872, Lexisnexis.com
3. The Code of Criminal Procedure, 1973, Lexisnexis.com

Secondary Sources:

1. Ratanlal & Dhirajlal, The Indian Penal Code, (35th Edition, 2017): This book
contains changes brought about by recent legislative amendments as well as
judgments of the higher courts. Apart from incorporating notable judgments of the
Supreme Court and various High Courts, important topics such as the following have
been discussed separately:
• Scope of application of general exceptions during investigation.
• Constitutionality of death penalty in the light of the Nirbhaya case.
• Application of men's rea to legal entities.

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 TABLE OF CONTENTS

1. INTRODUCTION……………………………………………………………6

1.1 Death penalty and Human rights……………………………………….6

2. CONCEPT OF RAREST OF RARE……………………………..................7

2.1 Reasonability of rarest of rare……………………………………….….8

3. PUBLIC TRANQUILITY AND DEATH PENALTY……………………..9

4. JUDICIAL PRONOUNCEMENT………………………………………….15

5. RECOMMENDATION/ SUGGESTION …………………………….……18

6. CONCLUSION……………………………………………………………….18

7. BIBLIOGRAPHY……………………………………………………………15

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 INTRODUCTION

The death punishment has existed since the beginning of civilization. The use of the death
penalty was viewed as a defiling act in ancient communities, but is now either rare or
exceptional in modern society. Similar to this, there have been instances in which brutal and
painful methods of execution were used, which have since been replaced and/or diminished.
Additionally, until the 19th century, even minor offences received the death sentence as a
generalized form of punishment. As modern nation states emerged, the idea of justice was
increasingly linked to the idea of natural and legal rights. 1 The progression of a developing
society's evolving standards of decency is clearly reflected in these changes.

Death penalty and Human Rights

Despite the fact that the right to life has a fundamental position in the list of human rights,
international law only partly prohibits the death sentence. The United Nations (UN)
Assembly said in the International Scenario that the death penalty had to be applied fairly in
every country. Fair, just, and reasonable procedures must be followed (UN Charter, 1948).
No one shall be subjected to torture or to cruel, inhumane, or degrading treatment or
punishment, as stated in Article 5 of the Universal Declaration of Human Rights, which was
adopted in 1948. Every Indian citizen has the right to life and personal liberty under Article
21 of the Indian Constitution, which also states that they have the right to live and not perish.
No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or
punishment, according to Article 7 of the International Covenant on Civil and Political
Rights, 1966.2

"Public outcry re-centred the discussion on the death penalty in a situation that abolitionists
found challenging to defend. The hangman becoming a role model and the number of
imitation hangings that result in child fatalities are only a few of the concerns that have arisen
as a result of the hanging but were disregarded and dismissed. The link between punishment
and the brutalization of society is no longer only a theoretical concern.3

1
Charles Fried, “Natural Law and the Concept of Justice”, 74(4) Ethics 237-254 (1964).
2
International Convenient on Civil and Political Rights. (1966) Adopted and opened for signature, ratification
and accession by General Assembly resolution 2200A (XXI) of December 16, 1966. Retrieved December 28,
2013 from http://www.ohchr.org
3
Sakhrani, Monica and Adenwall Maharukh, (2005): “Death Penalty: Case for its Abolition”, Economic and
Political Weekly, Vol. XL No. 11.pp. 1023-1026.

6
In this study, we will discuss how the application of the rarest of rare doctrines is fading in
awarding the death penalty as most of the courts are considering the public peace and
tranquillity instead of the facts and circumstances of the case.

CONCEPT OF RAREST OF RARE

The phrase "rarest of rare cases" first used in the Supreme Court's ruling in Macchi Singh v.
State of Punjab4 from 1983. This judgement was made in response to the court's earlier
ruling in Bachan Singh v. State of Punjab5(1982), which upheld the validity of the death
penalty but added the now-famous—though unclear that they would only be applied in the
"rarest of rare cases." The Indian Supreme Court has occasionally discussed the criteria for
identifying the rarest of rare cases. Some guidelines have been provided for identifying these
cases, such as: "The reasons why the community as a whole does not accept the humanistic
method reflected in the death sentence in no case doctrine are not far to seek6."

First of all, the respect for life concept serves as the cornerstone around which the very
humanistic group is built. The community may not feel oppressed by the restrictions of this
theory when a member of the group murders another member, going against this same ideal.
Second, everyone in the community can live in safety without having to worry about their
own lives being in risk because to the community's strong protection system.7

Prior to 1973, the Indian legal system compelled judges to give justifications for selecting a
life sentence over the death penalty in cases involving capital offenses. 8 As a result, judges
made the death penalty the "rule" and life in prison the "exception." In Jag Mohan Singh v.
State of U.P.,9 the Supreme Court upheld the constitutionality of the death penalty,
concluding that it was more than just a deterrent but also a symbol of the society's strong
rejection of the crime. In this case, the court held that India could not risk experimenting with
the death penalty's abolition and that any mistakes in sentence could be rectified by appeals to
higher courts. The death penalty, however, was described by the Court as the narrow
exception rather than the rule in sentencing. To safeguard public interest, public order, or
state security, the facts of the case necessitated it. The accused has the right to a pre-sentence

4
1983 AIR 957.
5
AIR 1980 SC 898.
6
Yakub Abdul Razak Memon case decided on 2015.
7
Akanksha Madaan, Capital Punishment in Rarest of Rare Case: Is it Just and Fair? (Manupatra.com) 2014.
8
Section 367(5) Code Criminal Procedure, 1973.
9
AIR 1973 SC 947.

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hearing as a result of recent changes to the Indian legal system, and as a result, the court is
now required to give a special reason for choosing the death penalty over a life sentence.

In the Priyadarshini Mattoo case,10 the death sentence was reduced to life in prison,
reflecting the Supreme Court's inner conflict with the doctrine's fundamental ambiguity.
There have been a number of Supreme Court decisions acknowledging that the application of
the "rarest of rare" doctrine is fraught with "chaos," "subjectivity," and "arbitrariness", 11 even
as death sentences are being handed down in a number of murder cases allegedly in response
to "society's cry for justice." According to this doctrine, the death penalty would only be an
option for the court to consider in the most extreme cases when a life sentence was
"unquestionably foreclosed" after weighing all of the "mitigating and aggravating elements."
Santosh Kumar Singh was saved from the death penalty in the Mattoo case, 12 because the
Supreme Court found that mitigating circumstances outweighed aggravating circumstances.
The Supreme Court's self-doubt has been louder in recent years in response to an increasingly
bloodthirsty public opinion, represented by a hyperventilating media, given the inherent
subjectivity in the weight allocated to each of those elements.

Reasonability of rarest of rare:

The introduction of the phrase "rarest of rare" has undoubtedly changed the way that judicial
judgments regarding the death sentence in India have been made. But it is not without
drawbacks. "The accused may readily ask: Am I to live or die depending on the manner in
which the Benches are constituted from time to time," is what they mean. Is that not clearly in
violation of the fundamental protections guaranteed by Articles 14 and 21? 13 The Supreme
Court upheld the death sentence given by the High Court in Karan Singh v. State of U.P.,14
where the accused killed five members of a family, on the grounds that the killings were
carried out in a heinous way and that the accused intended to wipe out the entire family. The
accused murdered his pregnant wife and three little children, according to Ravi v. State of
Rajasthan.15 While escaping from the crime scene, he also killed an elderly man who was on
his way. The death punishment cannot be commuted since the offense was so severe,
according to the court. In Surja Ram v. State of Rajasthan,16 it was stated once more that
10
Criminal Appeal No. 233 of 2000 decided on October 17, 2006.
11
Times of india Oct 7, 2010.
12
State V Santosh Kumar sing AIR 2006.
13
Hon’ble Justice Bhagwati in Bachhan sing V state of Panjab.
14
AIR 2006 SC 210.
15
(1996) 2 SCC 175.
16
(1996) 6 SCC 175.

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"the accused murdered his brother, his two young boys, and his elderly aunt by cutting their
throats while they were deep sleeping. With his brother's wife and daughter, he made the
same attempt and seriously hurt them. The victims' helplessness and innocence were noted by
the court, along with the brutality and strategy that went into the murder. The court
determined that such cases would fall under the category of the rarest of rare after observing
that they would shock society's conscience.” The death penalty was maintained in
Govindaswami v. State of Tamil Nadu,17 for the accused who brutally and deliberately
killed five members of his uncle's family while they slept in order to take their property.
State of Maharashtra v. Suresh,18 which involved the rape and murder of a four-year-old
girl, is another interesting ruling. Despite considering it to be a "rarest of rare cases," the
court declined to impose the death punishment on the grounds that the High Court had
changed the death sentence pronounced by the Trial Court. A girl in the second standard was
violently raped, according to Amrit Singh v. State of Punjab.19 Afterward, she passed away
from heavy bleeding. The accused was found guilty under Section 302 and given a death
sentence by both the trial court and the High court. Despite the brutality of the rape, the
Supreme Court ruled that the death was not premeditated. The Indian judiciary has recently
made progress against honour killing.

PUBLIC TRANQUILITY AND DEATH PENALTY

Public tranquillity- One of the State's main goals and fundamental duties is to strive to
maintain and preserve public order and peace. To achieve full serenity and calmness is to
achieve tranquillity, in the simplest sense. When speaking of "Public Tranquillity," it is meant
that maintaining morality and peace and tranquillity are two conditions for a community to
function well.20

Beginning in the middle of the 1980s and continuing through the 1990s, the Supreme Court
focused on the idea of "public outrage" about the kind of crimes committed. The "danger to
society" approach supersedes worries about criminals' reform and rehabilitation. It went
against the idea that a punishment like the death penalty should only be applied in extreme
cases. In Earabhadrappa alias Krishnappa v. the State of Karnataka,21 the "social necessity"
argument was first put forth. In this case, Justice A.P. Sen contended that it was the court's

17
(1998) 4 SCC 53.
18
(2000) 1 SCC 471.
19
(2007) 1 SCC (Cri) 41.
20
Hardik Vaid, Maintenance of Public Order and Tranquillity, Indian Legal Solution.
21
(1983) 2 SCC 330.

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responsibility to impose a suitable sentence based on the seriousness of the crime and if it
was desirable to do so as a social necessity to prevent other future offenders.

The Court stated that the need to protect society as a whole led to the introduction of death
sentences in the IPC. Those crimes that threatened society interests clearly deserved the most
severe punishment—death. It was necessary to compare and contrast exceptional conditions
and social necessity. In terms of the particular facts and circumstances they showed, cases
weren't only "rarest of rare." Instead, because of the unusual threat they posed to the wider
population, they became the rarest of the rare. Similarly, the decision to give or reject a death
sentence was not made purely on the basis of the criminal's circumstances. It had to be based
on investigation on the consequences of those events for society as a whole.

The Court's denial of commutation was heavily influenced by public opinion and outrage,
with the rarest of rare fading into the background. The cases of Munawar Harun Shah v. the
State of Maharashtra22 and Billa-Ranga (Kuljeet Singh alias Ranga v. Union of India and
others23) are two good examples of this. In the later, there were huge protests and calls for
serious sentence after two small children were abducted and killed. The Court did not record
the grounds for rejecting the leave petition or any other relevant data. Later, Kuljeet Singh
(Ranga), the defendant, submitted a separate writ petition. 24 The Court denied the
commutation plea. Furthermore, it made no mention of any supporting documentation while
asserting that the criminals did not deserve any sympathy "even in terms of the growing
standards of decency of a maturing society." The Court stated, "The survival of a peaceful
society requires the death of individuals like Ranga and Billa who pose a threat to peace and
security in society.

The court was under growing pressure, which is also reflected in this case. A second writ
petition was submitted to challenge the President's Clemency powers arbitrariness. 25 The
Court made an effort to obtain information from the government regarding the standard or
basis used by the executive in deciding whether to grant mercy petitions. It decided to dismiss
the petition because it did not receive reply. The Court ruled that any further discussion of
the President's mercy power may need to wait until another time. "This clearly is not that
occasion insofar as this case is concerned, regardless of the guidelines observed for the
exercise of the power conferred by Article 72, the only sentence which can be imposed upon
22
AIR 1983 SC 585.
23
(1981) 3 SCC 324.
24
Ibid.
25
Ibid.

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the petitioner is that of death and there are no grounds for overturning that sentence...not even
the most liberal use of his mercy jurisdiction could have convinced the President to overturn
the death sentence imposed upon the petitioner." It was strange because the Supreme Court
had previously granted the petition because of its "far-reaching relevance." According to
Kannabiran's statement, this was owing more to public opposition to commutation than to the
strengths or flaws of the petition in general.26

In the case of Munawar Harun Shah,27 the impact of public pressure on the writ petition
issue was once again apparent. The 1980 special leave petitions that were rejected are still
unreported in this case. A pre-sentence hearing had been emphasized in Bachan Singh's
judgment. Even though this hearing requirement was not followed by the Court in Munawar.
In 1981 and 1982, the review petitions were again dismissed. The Court did not provide an
explanation for this. No reports of these petitions or denials appeared in the Court's regular
journals, either. Considering the brutality, gruesomeness, and manner of commission of the
crimes in this case, which comprised seven murders, it was categorized as "rarest of rare" by
the Supreme Court.28 The Court argued that any leniency shown in the matter of sentence
"would not only be misguided but will certainly give rise to and promote a feeling of private
revenge among the people leading to instability in the region of the society" in anticipation of
a negative public opinion in case of a softer judgment. The Court not only dismissed the
petitions but also demanded the accused speedy execution. Prior to this, in Sevaka Perumal as
well, the Court discussed "private vengeance" in the case that the victim's expectation of
justice was not met by the judgment.

Another Supreme Court bench adopted the social necessity and deterrent rationale in 1987.
The case was Mahesh s/o Ram Narain and others v. State of Madhya Pradesh,29 (hereafter
referred to as "Mahesh"). The death sentences of two defendants in the caste-based murders
of five individuals were upheld by Justices Khalid and Oza in this case. The verdict does not
address the accused role; instead, it discusses "the evil of Untouchability." The high court
held that the act "was extremely brutal, repugnant and gruesome which shocks the judicial
conscience,". "In such shocking nature of the crime as the one before us, which is so cruel,

26
Amnesty International India and the People’s Union for Civil Liberties (Tamil Nadu & Puducherry) have
issued the study, Lethal Lottery: The Death Penalty in India, A study of Supreme Court judgments in death
penalty cases 1950-2006.
27
Supra note 22.
28
Apala Vatsa, Fading Impact of the ‘Rarest of Rare’ Doctrine: has the Baton passed to the ‘Public Opinion’
Approach? (International Journal of Law Management & Humanities, 2022) 5 (2).
29
AIR 1987 SC 1346.

11
barbaric and revolting, it is necessary to impose such maximum punishment under the law as
a measure of social necessity which works as a deterrent to other potential offenders." In this
case, the idea of "judicial conscience" was linked with the concept of "social necessity." It is
impossible to determine whether the Court imposed its own moral/immoral standards upon
society or altered those standards in response to social pressure. In each case, the distinction
between what society and the legal system see as a constant threat to society seemed unclear.

In Mahesh case, the Court further stated, "We also feel that it will be a travesty of justice to
allow these appellants to escape the severe penalty of law when faced with such evidence and
such heinous conduct. The justice system of this nation would be questioned if the appellants
received the lighter punishment. People will stop having faith in the legal system. In these
situations, he is more receptive to and understands the language of deterrence than the
language of reform. The Court decided that the reformation as a whole should be the main
focus. But in this case specifically, the court gave the defendant the death penalty.
Furthermore, no mitigating factors were mentioned in this decision. It seemed that societal
expectations of the judiciary readily took priority over worries for the "rarest." In all of
its judgments, the court emphasized primarily what the community expects of it and how
committing certain offenses was harmful to society. 30 There wasn't a thorough explanation of
the specific details of the case at hand that made it the "rarest of rare." As we saw above, the
Court argued in Earabhadrappa that "exceptional circumstances and societal need had to be
analysed simultaneously" (following Bachan Singh). The Court further incorporated
deterrence in Mahesh.

To reduce the likelihood of a repeat offense, the Court suggested that keeping certain
criminals behind bars is necessary for society. The importance of deterrence logically
increased as social need ideas gained popularity. Criminals who have previously damaged
society interests must be made so helpless that they are unable to shock the moral fibre again.
In these early decisions, the Court chose to look at a criminal's tendency for violence rather
than whether or not he had any chance of turning his life around it and shocking the public
conscience once more. The courts in Bachan Singh were directed to provide proof that the
perpetrator could not be changed. But beginning in the middle of the 1980s, the Court just
provided proof that the defendant had a clear violent tendency. The justification for imposing
death was changed.

30
Abhinav Chandrachud, Inconsistent Death Sentencing in India, (Economic and Political Weekly, 2011) 46
(30) pp. 20-23.

12
Like Mahesh case, arguments based on "social necessity" were prominent in Asharfi Lal and
Ors. v. State of Uttar Pradesh.31 Again, mitigating factors were not mentioned. The exact
position of the offender in relation to the offense he had committed was not examined.

Age, poverty, and illiteracy were not mentioned, as the majority of the focus was given to
how the specific crime had long-lasting effects on the general society.

To start, it is impossible to predict how society will feel about any crime or offender at any
particular time. The Court was, at best, giving in to emotions by using something as arbitrary
and transient as popular opinion as the standard for deciding who would live or die. Priority
was placed on deterrence and safeguarding society from offenders rather than reformation. If
the court did not protect the injured, the injured would then turn to private vengeance, the
court argued. "Undue sympathy to impose inadequate sentence would do more harm to the
justice system to undermine public confidence in the effectiveness of law and society could
not long ensure under serious threats." Many decisions were made without considering the
facts of the case or the circumstances of the offender, but rather on the basis of presumptive
worries of how society might react.

The likelihood of victims taking revenge for wrongs committed against them was weighed
against the likelihood that an offender would change. The Court automatically assumed that a
criminal will commit another offense since it was what society expected of it. In addition, the
Court often chose to skip over a complete analysis of the circumstances that may or may not
have constituted a case the "rarest of rare."

The court raised the risk of widespread violence in 1996. In the case of Gentela
Vijayavardhan Rao and others v. State of Andhra Pradesh,32 a bus with a large number of
passengers was set on fire after a failed robbery attempt. The Court ignored mitigating factors
such the accused age, the fact that robbery was the main driving force behind the killings, the
lack of advance planning, and the fact that those who could escape were permitted to do so.
The court stated that these were "overshadowed by various aggravating circumstances...(and)
planned genocide... conducted with extreme depravity and. the cruel manner in which they
planned the conspiracy and executed it".33The court further stated that "the common man
would lose faith in the legal system" if "this type of criminal is allowed to avoid the death
31
AIR 1989 SC 1721.
32
AIR 1996 SC 2791.
33
A subsequent campaign for commutation led by the Andhra Pradesh Civil Liberties Committee argued that the
killings were unintentional and unplanned and was ultimately successful in obtaining a commutation of the
sentences by the executive.

13
penalty." The High Court had previously stated that the death penalty was necessary in this
case to reduce the likelihood of public backlash against the offenders. Again, there was no
consideration of the murderer's circumstances in the judgment. The Court had previously
expressed concern about public outrage in Sevaka Perumal if the decision did not fulfil
societal expectations.

In the case of Ram Deo Chauhan and others v. State of Assam, 34 (referred to as "Ram Deo
Chauhan"), Justices Thomas and Sethi argued that "when a man becomes a beast and menace
to the society, he can be deprived of his life." The Court's justification was based on the idea
that anyone who commits a premeditated quadruple murder is not deserving of sympathy.
The Court argued that such criminals must be executed in order to safeguard society and
prevent future offenders. In Narayan Chetanram Chaudhary and anr. v. the State of
Maharashtra,35 the same Bench upheld the death penalty for the defendants, who had been
convicted guilty of robbery and five murders. According to the court's conclusions, these
prisoners were "so self-centred on the idea of self-preservation that doing away with all the
residents of the house was settled upon them as an important aspect of the plan from the
beginning." In this case, premeditation was interpreted as a strong desire to harm people in
general. People who had already committed a premeditated crime that was harmful to
society's interests and showed excessive selfishness did not deserve a second chance.

In Gurdev Singh and others v. the State of Punjab,36 Justices Srikrishna and Balakrishna
upheld the death of two offenders who had helped in killing thirteen persons. The court
argued that the case "shocked the collective consciousness of the community”. Despite the
fact that they had no prior offenses against them, the court considered the convicted
individuals to be long-term risks to society. The murders carried out by the appellants were
described as being "so horrific, merciless, and brutal that the aggravating circumstances
significantly outweigh the mitigating circumstances," it was claimed.

The citations in the Nirbhaya case,37 inevitably led to the key takeaway from Macchi Singh
(1983), which is that the death penalty should only be applied in the most extreme
circumstances, "when its collective conscience is so shocked that it will expect the holders of
the judicial power centre to inflict death penalty irrespective of their personal opinion as

34
AIR 2000 SC 2679.
35
(2000) 8 SCC 457.
36
AIR 2003 SC 4187.
37
Mukesh and Anr vs NCT Delhi, (2017) 6 SCC 1.

14
regards desirability or otherwise of preserving death penalty." Several times, the terms
"collective conscience" and "society's cry for justice" are used.

To deter future offenders and to guarantee that society is not injured or that its peace,
tranquillity, and order are damaged, harsh punishment is necessary. The State cannot risk the
deaths of thousands of innocent people just to save the life of a single convict who doesn't
even deserve to be allowed to exist in a society of civilized people. Therefore, the death
penalty must remain in place.

JUDICIAL PRONOUNCEMENTS

Case Name: Bachan Singh V. State of Punjab

Citation: (1982) 3 SCC 24

Facts of the case:

In the instant case the accused has murdered 3 people and hence, the sessions court has
convicted him with death penalty which was affirmed by the high court. Aggrieved by this
decision the accused approached the supreme court of India challenging his death penalty and
the constitutionality of section 354(3) of Code of Criminal Procedure, 1973 and also, the
accused has challenged the reasons accorded for his conviction stating that they don’t fall
under the special reasons as envisaged under the section 354(3).

Questions of Law:

1. Whether punishing the convict with death penalty for the offence of murder under section
302 of Indian Penal Code, 1860 is violative of constitutional legitimacy?

2. Whether the section 354(3) of Code of Criminal Procedure shall be struck down as it gives
unfettered powers to the judiciary with no clear distinction as to what amounts to special
reasons to punish a convict with death penalty?

Arguments of the Accused:

The accused has firmly and strongly argued that punishing a convict with death penalty
would lead to ending of all freedoms guaranteed to him by virtue of article 19 of the Indian
Constitution, 1950 and further, it serves no societal purpose and its an unreasonable
restriction. Hence, the same shall be declared as unconstitutional by the court.

Arguments of the State:

15
The State has argued that no fundamental right is absolute and further, every citizen shall not
only enjoy their right but also have certain duties to perform which primarily includes non-
infringement of other’s rights and hence, death penalty shall be there in order to protect
societal interest.

Reasoning of the court:

The Apex court in the instant case has held that the death penalty is neither against the public
policy nor is it against the article 19 of the Indian Constitution and the death penalty is mere
alternative punishment given for murder and further, it is not unreasonable and the special
reasons under the section 354(3) of the Code of Criminal procedure, 1973 means that death
penalty must be imposed in grave and rarest of rare cases.

Judgement:

The death penalty is constitutionally valid.

Case Name: Macchi Singh V. State of Punjab

Citation: AIR 1983 SC 987

Facts:

In the instant case, the accused along with 11 accomplice has committed series of murders
and have murdered 17 people and then, the survivors of these attacks have stood as eye
witnesses in the instant case and the sessions court has convicted 3 accused with death
penalty and other 9 accused were convicted with the life imprisonment and the high court has
also affirmed the death penalty and hence, aggrieved by this decision, the accused has
approached the supreme court of India under article 136 of Indian Constitution,1950.

Questions of law:

1. Whether the instant case falls under the rarest of rare doctrine as held in the case of
Bachhan Singh Case?
2. What is the criterion which constitutes rarest of rare case?

Arguments of the Accused:

The accused has argued that in the instant case, the accused are to be given with the benefit of
doubt as the murders are committed in the dark and there was no light and the light which is

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produced from lamps is not enough to identify the accused and hence, they are to be
acquitted.

Arguments of the State:

The state has argued that all the victims, witnesses as well as the accused belong to the same
village and they are accustomed to see the accused in the lamp lights and further, the accused
have not even covered their face during the commission of offence and hence, the victims
were able to identify them and hence, the appeal is to be dismissed by the court.

Reasoning of the court:

The court has held that the act committed by the Macchi Singh falls within the ambit of the
rarest of the rare case and hence, their death penalty is confirmed and further, the court has
laid down the following details to decide as to what amounts to rarest of rare case:

1. Manner of commission of Murder

2. Motive for commission
3. Is it anti-social or abhorrent nature of offence
4. Magnitude of the crime
5. Personality of victim of murder

Judgement:

The court has finally affirmed the decision of sessions court.

RECOMMENDATIONS/ SUGGESTIONS:

The suggestions listed below are made in an effort to regulate and moderate the disputes
surrounding the doctrine of the rarest of the rare:

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 1. Standardized guidelines should be laid down:

It is necessary to establish a uniform set of guidelines defining the criteria for categorizing
cases as the rarest of the rare. This can help in clearing the mental haze that has caused
different lawyers and judges to become confused.

2. The decision must be taken with due care and reasonableness:

While determining whether to impose the death penalty, it is important to keep in mind that
even though the accused did a violent crime, if there is any likelihood that the accused won't
cause future harm to society, the accused should not get the death penalty.

3. Death penalty should not be delayed after its pronouncement:

The Supreme Court ruled in Triveni Bai v. State of Gujarat38 that the execution procedure
must be postponed for justifiable reasons in order to ensure that the accused receives a fair
trial. However, it is advised that after the death penalty is announced, there should be no
delay. This does not imply that the accused should not have the option to appeal, but rather
that this option should only be available for a limited time.

4. Death penalty must not be rendered in haste:

Before imposing the death penalty, the constitutional bench should carefully consider all
relevant factors and make sure that its decision was not made in a hurry.

5. The punishment should be reasonable in comparison with the act

The severity of the crime for which the death sentence is being applied must be taken into
consideration. Petty offenses shouldn't warrant the imposition of the death penalty. In order to
serve as a deterrent and prevent potential criminals from committing such a horrible crime, it
must be related to the gravity of the conduct.

CONCLUSION

For protecting the public order and their peace and tranquillity court advanced the public
opinion which completely defects the entire concept of rarest of rare. The idea of choosing
the best punishment suffered a low priority due to a lack of discussion regarding the facts and
circumstances of the case and the offender. Only focusing on the crime or the offender would
38
Triveni Bai v. State of Gujarat, (1983) 2 SCC 68.

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not give the whole picture. Any sentence that was determined solely based on either would
have some gaps in it. The court occasionally added society's demand for justice, the general
consensus of opinion, or the collective conscience to the equation; other times, it prioritized
one factor over another. One cannot predict the outcome of the judicial coin toss. Depending
on the outcome, one could either survive or die. Without a doubt, the judges cherry-picking
of facts pertaining to crime and criminal.

BIBLIOGRAPHY

 statutes referred:

1. The India Penal Code 1860, lexisnexis.com.

2. The Indian Evidence Act 1872, Lexisnexis.com.
3. The Code of Criminal Procedure, 1973, lexisnexis.com

 Books referred:

2. Glanville Williams, Textbook of Criminal Law, (2nd Edition, 1999).

3. K.D. Gaur, A Textbook on the Indian Penal Code, (7th Edition, 2022).
4. Ratanlal & Dhirajlal, The Indian Penal Code, (35th Edition, 2017).

 Articles referred:

1. Sakhrani, Monica and Adenwall Maharukh, (2005): “Death Penalty: Case for its
Abolition”, Economic and Political Weekly, Vol. XL No. 11.pp. 1023-1026.
2. Abhinav Chandrachud, Inconsistent Death Sentencing in India, (Economic and
Political Weekly, 2011) 46 (30) pp. 20-23.

3. Akanksha Madaan, capital punishment on rarest of rare case: is it just and fair?
(Manupatra.com) 2014.

 Online Sources:

1. Hein online, https://home.heinonline.org/ (last seen on 19 October, 2022).

2. Lexis India, https://www.lexisnexis.com/in/legal/ (last seen on 19 October, 2022).

3. Manupatra, http://www.manupatrafast.com (last seen on 19 October, 2022).

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4. SCC online, http://www.scconline.com/ (last seen on 19 October, 2022).

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