Doctrine of “Rarest of Rare”; A Lethal Lottery?

This blog is inscribed by Shashank Sachi.

The severity of punishment must be of a degree which is sufficient to deter others.


The aforementioned quote clearly states the objective of punishment i.e. it must be coupled with the cap of morality and circumstantial degree i.e. the deterrent objective. It lays the principal that the severity of punishment must be proportional to the crime and must have a deterrent effect on society.


The Doctrine of “rarest of rare” that traces its origin from a 1983 case that is based on the same objective i.e. a legal death warrant shall be exercised only under the rarest conditions and thus making it rare integral part of criminal justice reform. Well there is no specified definition of this doctrine. After life imprisonment capital punishment is the highest degree of punishment that too attract only rarest of rare crime. Such extraordinary ground court has no other resort than to effect a capital punishment for the well-being of the society and the state as well[1][1]. Such framework was first pronounced by apex court in case of Bachan singh v. State of Punjab

The doctrine of “rarest of rare” is based on following two principals:

⦁          Aggravating Circumstances:  In this judge may on his/her will impose the death penalty.

⦁          Mitigating Circumstances: The bench shall not award death penalty on “rarest of rare” circumstances.

Development of “Rarest of Rare” doctrine:

Doctrine of “rarest of rare” was first propounded by the Apex court in case of Bachan Singh case (4:1) in this case the 5 judges bench laid down the caveat of this doctrine. Speaking J.R Sarkaria held that for the convicts of murder or other serious crime life imprisonment is general rule but capital punishment is exception. It shall be applied only when the alternative option is unquestionable. In Maneka Gandhi v. Union of India the Supreme Court ruled that death punishment shall be awarded only in the special cases.

The Machhi singh case laid down some criteria to deal with the implication of death penalty and another important statement made by court made in Yakoob Menon’s Case and observed that:

There lacks a humanistic approval by community in such approach as this doctrine not far seek.

Firstly: The very foundation of humanistic group believes in the principle of life but this doctrine shall not be cuffs when a crime is done against society.

Secondly: A community must be protected by a silent mind and peace that shall not be disturbed and such disturbance by heinous offences shall also not be accepted by Rule of law.

Every Member of a community owes a debt towards the peace of society and principle of life shall be limited. As for the heinous crime like murders and other serious offences even a community and law holders they do not restrict themselves from retaining the death penalty. This can be done in such instances:

Manner of commission:

The murder is of such nature that it creates fear in mind of general public as the nature of commission being extreme ridiculous or diabolic.

⦁          Baking of victim alive

⦁          cutting the victim’s body into pieces

Motive behind commission of crime:

It is need to calculate the gravity and depravity of cruelty behind the motive of crime committed:

⦁          Killer hired for money

⦁          Insignia of a cold-blooded murder

⦁          Or a commission against betrayal of state

Anti-social nature:

When the offence is of such nature that it is against the basic principle of society like murdering or lynching of a Schedule caste or minority or an act that harms the social harmony at rem.

Magnitude of Crime:

When the nature of crime is of very high nature like multiple murders of murdering of whole family.

Other Factors:

In order to enable or avoid death penalty there are several judicial and non-judicial factors that need to be kept in mind in order to stamp it with doctrine of “Rarest of Rare”. As the number of victim cannot be only the yardstick of delay in judicial process also need to be taken into cognizance the same was put forward by bench in G.V. Rao v. State of AP[2] the point of corroborative evidence put forward by court in State of Punjab v. Gurmit Singh[3]

Therefore, any liberal attitude cannot be taken into account and all the evidences need to be viewed as this will be a decision in social interest/

Constitutionality of Death penalty:

Constitution the yard stick of the country was being checked case by case in the point that does capital punishment qualifies the constitutional validity?

Capital punishment was first criticized by J. Iyer in case of Rajendra Prasad and said that it violates the provision of Article 14, 19 and 21.

In Mithu Singh v State of Punjab,  it was said that a bench cannot decide the death and life of a person.

Later on with the time and cases judiciary defined capital punishment w.r.t. Constitution of India.

It was first canvassed for the first time in case ofcame out that Section 302 of IPC challenge the violation of Article 14, 19 and 21 of the constitution. Court upheld the death penalty and held it constitutional but explaining further court said that, no one can take away the life of a person unless it is in interest of public and thus left it difficult that capital punishment is unreasonable.

[4]Unlike Article 21 article 19 has no any deal with life and also not applicable for judging the constitutional provision of Section 302 of IPC.  In relation with Article 21 the founding fathers of constitution recognized that state can deprive the life of a person by just and fair legal means other indication for the same can be found in list II Article 72(1)(c) and Article 161 and Article 32(12).

In Triveniben v. State of Gujarat[5] confirming the death penalty court held it not unconstitutional.

In T.V. Vatheeswaran v. State of T.N.[6]  it was held that a delay of two years in death punishment it shall move to full time life imprisonment this was later overruled in Sher Singh v. State of Punjab  and the limit was removed.

In bird’s eye view one can say that even the judiciary favors the capital punishment under rarest of rare circumstances even under the influence of constitution it is valid under grotesque criminal condition even in modern time it has been proved true while deciding the case of State vs. Mohd. Afzal the ground of waging war against government and hampering the sovereignty of the state. In Nirbhya rape and murder case declaring it the rarest of rare and most heinous crime court awarded death penalty and the order was executed on 20 March, 2020.

International stand on Death penalty:

It can be said without any iota if doubt that the international societies did not prohibit for capital punishment rather, they give a blanket support as the first essence can be discovered in Geneva Convention of 1929 that had made death penalty circumstantial.

Article 6(1) of International Convenient on Civil and Political Rights states that right to life is a very inherent right of human being and no one shall be arbitrarily deprived. Widening it’s scope it accepted limitation on death penalty under most serious genocide and heinous crimes[7]

Widening further it limits it to unevenly defined under article 6(5) i.e. is no capital punishment for under 18 years of age.

Position of US on death penalty:

It is very interesting to see the stand of US on death penalty as out of 50 states 30 states stand for the execution of death penalty it was held in Gregg v. Georgia[8]in 1976.

Position in England:

The position is up to the discretion of judge as in case of Treason and capital and repeated murder it is up to discretion of judge. Further a acid rule is that a women and a child cannot be hanged.


It has been seen a lot of times that the application of rarest of rare on the philosophy of bench and in relation of this there are series of examples and conditions.

1. Murder misusing Trust:

In Erabhadrappa v. State of karnataka[9] appellant a victim who was a servant in defendant house and murdered the family and looted all the ornaments after on Supreme Court refused to consider it under rarest of rare doctrine the same philosophy overturned by a bench in case of Amritlal Someshwar Osi v. State of Maharashtra[10] a cook committed robbery and murdered three members of the family and bench decided to adjudge it into rarest of rare condition. Thus, till some extent it can be said that    apart from the guidelines the execution of Rarest of rare is very much depended on philosophies of bench.

2. Kidnapping and Murder

In case of Anshad v. State of Karnataka kidnappers were asking money from the father of the boy whom they had killed already and court has agreed to consider this under rarest of rare doctrine as the ransom was continued even after murdering the kid.

3. Robbery and Murder:

In Narayan Chetanram Chudri v. State of Maharashtra accused in course of robbery murdered five women but the bench refused to list it under rarest of rare as the main course was robbery not of murder. On the same aspect another bench in case of A Devendran v. State of Tamil Nadu[11] which the beech adjudge that number of people being murdered cannot be sole criteria to list under as of rarest of rare and in this case where the accused person murdered three person during course of robbery and thus listed under this doctrine.

4. Rape and Murder:

In recent a very famous verdict comes to an end with the execution of four convicts in the Nirbhya rape and murder case in which the brutality has breached the acme and the sentence of SC proved it as a set example for society.

5. Terrorism:

With the time for every terror attack the courts of India unanimously pronounced the verdict of death penalty and called it as an exception as this is being a crime not only against a society but against the humanity as whole and government also as from Yakoob Menon to Kasab and Afzal Guru.

So, from above study we can pen down one thing that apart from the laid guidelines of Macchi Singh case and Bacchan singh case it has been a philosophy of udge centric approach which deters by bench from bench and the philosophy of udge for the applicability of doctrine of Rarest of rare.

Frequently Asked questions (FAQs)

Q1 What are the principle of Rarest of Rare capital punishment?

Ans – Section 354(3) of Code of Criminal Procedure, 1973 in case of death sentence there are some circumstances that is need to be fulfilled followed with special reason for such sentence.

1.         Aggravating Circumstances:

⦁          Accuse traces the commission of heinous offence like rape murder and other felony of offence or having a substantial history of serious criminal conviction.

⦁          Offence has already involved another serious crime while present crime

⦁          Offence must be of such nature that it puts fear in mind of general public

⦁          Offence of Murder has done for ransom or by hiring a killer

⦁          When there is an offence at mass level like murder of a family

⦁          A cold blooded murder without provocation

⦁          A crime of brutal nature (Nirbhya Rape and Murder Case)

2.  Mitigating Circumstances:

⦁          Age of accused but it cannot be a determining factor in itself

⦁          Manner and circumstances of offence committed

⦁          Chance of accused to fall in trap of offence

⦁          unsafe testimony to be relied upon

⦁          when it is established evidence that the crime committed is not in pre-ordained manner

Q 2. For What offenses death warrant can be issued?

Under IPC

⦁          Section 121 – Waging or attempting to Wage war against GOI

⦁          Section 132 – Abatement to mutiny

⦁          Section 302- murder amounting to death of life imprisonment

⦁          Section 364 A – Kidnap or Ransom

⦁          Section 369- Dacoity with attempt to murder

⦁          Section 109- Abatement of offenses punishable to death

⦁          Section 305- Abatement of suicide of a Minor insane or intoxicated person

⦁          Section 376A – In reference of Section 376(rape) and while causes women in persistent vegetative state

Other than IPC:

⦁          Narcotics Drug and Psychotropic Substances Act 1985

⦁          The Commission of Sati (prevention) Act 1987

⦁          SC and ST Prevention of atrocities Act 1989

⦁          The Indian Navy Act 1950

⦁          The Indian Air force Act 1950

⦁          The Indian Army Act 1950

Guidelines for determining “rarest of rare” :

The five point guideline proposed by the 3- judge bench in Machhi Singh shall be followed first before determining the death penalty:

⦁          Manner of commission of crime (e.g. baking alive cut in pieces etc.)

⦁          Motive of offense

⦁          Socially abhorrent nature ( e.g. Tandoor case)

⦁          Magnitude of Crime(e.g. multiple brutality)

⦁          Personality of victim ( girl child old age etc.)

Scope of Capital Punishment:

In accordance of Section 354(3) the punishment pronounced is if death penalty it must follow a ratio decidendi and thus court pinned a two point argument as ;

⦁          Was there something unusual interpreting life imprisonment unusual

⦁          No alternative rather to impose death  penalty and it must follow a rational behind 354(3) )

It was laid down in Bachan singh case:

⦁          Extreme Culpability.

⦁          Circumstances checked (Aggravating and Mitigating circumstances).

⦁          Life imprisonment is rule while death is exception.

⦁          Balance sheet weight must be made.


Can it be considered as a judge centric approach or an act of lethal lottery? Yes but within a limited bracket. The record presented before by the project 39A done by NLUD in consideration with NALSA came out with several data.

⦁          Trial Courts: A total of 102 death sentence issued in 2019 which was a significant drop from the year of 2018 i.e. 162

⦁          High court: Apart from all the capital punishment awarded by the trial courts only 65.38% cases were confirmed.

⦁          Supreme Court: Out of this all only 27 got confirmation.

          Warrant Issued: Only 6 got the final red paper (2019).

From the various judgments and orders all the way irrelevant to the judgment be unanimous or majority judgment different points has been laid down in which some favored some called for reform in law of capital punishment which implicitly explains it to be a judge centric decision and the bulk decision by court may be called as an act of lethal lottery.

It is not a possible state that India can abolish death penalty as it is a member of Universal Declaration of human Rights but under a defined limited scope like under rarest of rare condition. The above topic i.e. Death penalty A Lethal lottery? in my opinion Subtly No.

It can be said without any iota of doubt that the capital punishment is a inhumane process but it can be considered for the heinous crimes deterrent for the society and even the mind of makers of Indian constitution shows their mind set in Article 19 and Article 21 that state can take the life of person for heinous crime that can create a serious impact in mind of society and for this the Apex court has come out with two different applications that need to be fulfilled before the application of doctrine of rarest of rare i.e. Macchi singh and Bacchan singh and this exception also provides by ICCPR that death penalty can be executed with certain exceptions.

In the perspective of India apart from the various rules it has been a judge centric approach more often like the mind of bench shall be a deciding factor according to the gravity of offence like in case of Shiv Balakal v. State of Gujarat[12]re the accused was a labor raped a teen and was considered as heinous but not fit for capital punishment and thus awarded life imprisonment again the philosophy can be seen in case of Absar Ahmad v. State of Bihar[13]the accused had chopped her mother’s head due to extreme poverty and court has awarded death penalty instead of it’s heinous nature as the bench find it not harm for society.

From above all discussion we can say that the rarest of rare has not proven to be lethal as apart from the various laid guidelines it has been a judge centric approach that needs to be ratified as the society changes with the time.


It is humbly submitted that has been found the lacking in judiciary and guidelines which are as follows:

1.         Proper laws: Apart from the various guidelines a proper structured law needs to be put forward for the application of rarest of rare.

2.         Due Care decision: It has been seen from various times that benches differ in the philosophy i.e. sometimes facts are same but bench disagreed that need to be retraced again.

3.         Delay in Accomplishment of death penalty : It has been proven some of time that death penalty has been awarded and not been executed from a long time like the case of Shabnam v. Union of India]has been proven unethical for delaying and not following the supreme court rules 2013  and the same has happened in case of Md Arif v. Registrar in which proper rules and guidelines were not followed.

4.         Haste and death penalty:  Sometimes many of the judgment were given under haste without following the Supreme court Rules 2013 in case of Md Arif v. Registrar of SC.

The status quo of the doctrine of rarest of rare is quite abrupt and need to be discussed thoroughly and penned down again rather following the age old rules laid down in Macchi singh or Bachan singh case as both lacks in certainty in some context.

[1] Rajendra Prasad v. state of Up (1979) 3 SCC 649

[2] (2001 (5) ALD 705, 2001 (5) ALT 553)

[3] (1996 AIR 1393, 1996 SCC (2) 384)

[4] (Bachan singh vs. state of Punjab )

[5] (1989 AIR 1335, 1989 SCR (1) 509)

[6]( 1983 AIR 361, 1983 SCR (2) 348)


[8]  AIR 1980 SC 898, 1980 CriLJ 636

[9] (1983) 2 SCC 330

[10] (1994] SUPP. 3 S.C.R.

[11] AIR 1998 SC 2821

[12] AIR 1985 SC 48

[13]  AIR 1985 SC 48

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