Rarest of Rare Doctrine

rarest of rare

Recently, the Apex Court has upheld the death penalty awarded to the accused of Nirbhaya rape-cum-murder case after calling it as “rarest of rare” case and extreme punishment is granted for the sake of ensuring justice. In India, “rarest of rare” doctrine is the yardstick for granting capital punishment.

Meaning and scope of ‘Rarest of Rare’

There is no statutory definition of rarest of rare. In a criminal trial, the nature and gravity of the crime are taken into consideration for determining a suitable punishment. The Court shall be deemed to have failed in discharging its duty if proportionate punishment has not been awarded for those crimes which are committed not only against one particular individual but can be said to have been committed against the society at large. Therefore, weight age is given to the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal”.[1] That is to say, the existence of such extraordinary grounds under which the Court has no other resort than to effect a capital punishment for the survival of the State as well as society.[2]

The principle of ‘rarest of rare’ can be divided into parts:-

  1. Aggravating circumstances
  2. Mitigating circumstances

The difference between the two is that in case of aggravating circumstances, the Judge may on his will impose death sentence but for mitigating circumstances, the Bench shall not award death penalty under rarest of rare cases. The Judicature of India is under an obligation to strike a balance between aggravating and mitigating circumstances on one hand and cry of the society on the other.

Evolution of Rarest of Rare Doctrine

In Maneka Gandhi v Union of India[3], the Supreme Court has ruled that the death penalty can be awarded only in special cases. It constitutes an exceptional punishment which will be imposed only with special reason and must be properly conferred by the High Court.

In Rajendra Prasad v State of Uttar Pradesh[4], 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[5].

The five Judge Bench in Bachan Singh v State of Punjab[6]laid down the caveat of rarest of rare. Justice R Sarkaria speaking for the majority held that for convicts of murder, the general rule is life imprisonment of whose death penalty is an exception. An enduring and predominant concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality.“That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”[7]

The same was reiterated in Santosh Kumar Bariyar v. State of Maharashtra[8]. Justice S B Sinha in his majority judgment has imposed a duty upon the court that “appropriate punishment is to be determined on a case-by-case basis. The death sentence is not to be awarded save in the `rarest of rare’ case where reform is not possible.”[9]

 Constitutional validity of Death Penalty

The constitutionality of death sentence was canvassed for the first time before the apex court in the case of Jagmohan Singh v State of Uttar Pradesh[10]. Section 302 of IPC was challenged as violative of Article 14, 19 and 21 of the Constitution. The Court upheld the sentence of death as constitutional and held, that even after assuming that right to life is the foundation stone of the freedom enumerated under Article 19 and that no law can be enacted which takes away the life of a person unless it is reasonable and in public interest. So, it is difficult to hold that capital punishment as such was unreasonable or not required in public interest. If the entire procedure for a criminal trial under the CrPC for arriving at a sentence of death is valid then the imposition of the death sentence in accordance with the procedure established by law cannot be said to be unconstitutional.  

In Bachan Singh, the Supreme Court reaffirmed its earlier decision in Jagmohan case by 4:1 majority. It was argued that the Supreme Court in Maneka Gandhi v Union of India has given a new interpretative dimension to articles 14, 19 and 21, and their interrelationship in every law of punitive detention both in its procedural and substantive aspect must pass the test of all three articles. However, the Court rejected this argument.[11]It was held that article 19 unlike article 21, does not deal with the right to life and personal liberty and is not applicable for judging the constitutionality of the provisions of section 302 IPC. As regards article 21, it was recognized that in the said article, the founding fathers recognized the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by law, and there are several indications in the Constitution which show that the Constitution makers were fully cognizant of the existence of death penalty, such as, Entries 1 and 2 in List II, article 72(1)(c), article 161 and article 34.[12]

In T.V. Vatheeswaram v State of T.N.[13], it was held that delay exceeding two years in the execution of death sentence entitles a convict to get it commuted to life imprisonment. But it was overruled in Sher Singh v State of Punjab[14], that no such limit could be fixed for the execution of death sentence without regard to the facts of every case. 

 International conventions on Death Penalty

Article 6 of the ICCPR states that no human being shall be arbitrarily deprived of his life. Further, it states that those countries which have not abolished the death penalty,sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide.[15] The Convention on the Rights of the Child explicitly prohibits capital punishment for juveniles.Article 3 of the Universal Declaration of Human Rights, States should progressively restrict “the number of offences for which capital punishment may be imposed, with a view to the desirability of abolishing this punishment in all countries.”[16]

The UN Economic and Social Council reiterated that the death penalty should be imposed only for the most serious crimes and stated that the scope of these crimes “should not go beyond intentional crimes with lethal or other extremely grave consequences”.[17]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.”[18]

 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

For the offences of first two type, the Judge has no other choice than to award death penalty. The last two offences have been left upon the discretion of the Judge. The acid rule is that neither a minor nor a pregnant woman can be hanged to death.  

 Position in United States

The United States has an interesting departure from the global trend in case of the death sentence. For a brief period of 4 years from 1972 to 1976, it was abolished with the ruling of U.S. Supreme Court in Furman v Georgia[19]. However, in 1976, the Supreme Court overturned its earlier verdict in Gegg. v Georgia[20] thereby upholding the constitutional validity of the death penalty. Consequently, 35 out of 50 states have reinstated the capital punishment in their respective states.

 Position in South Africa

Through one of the earlier judgments of Makwanyane v Muhunu[21] abolished death penalty provided under section 277 of Criminal Procedure Act, 1927 as contrary to the country’s new interim Constitutions. Allowing the petition all the eleven judges of the Court drafted individual reasons in support of their unanimous conclusions. Ten of the eleven judges concluded that the death penalty constitutes cruel, inhuman or degrading treatment or punishment.[22]The UDHR establishes an individual’s right of protection from deprivation of life and proclaims no person shall be made to suffer degrading or cruel punishment.[23]The UNGA finds capital punishment violates both basic rights.[24]

 Illustrations of Rarest of Rare Doctrine

Illustration 1 :- Nathuram Godse v Crown[25] (Assassination of Mahatma Gandhi)

The case of Nathuram Godse is perhaps the first case of rarest of rare nature that took place in independent India. On the evening of 30th January 1948, Nathuram Godse shot dead Mahatma Gandhi in a prayer meeting at Birla Mandir in Delhi. After a prolonged trial, Justice Amarnath awarded him death sentence which was unanimously confirmed by the three judges of Punjab High Court.

Illustration 2:- Sanjay and Geeta Chopra Murder case

The Supreme Court in Kuljeet Singh alias Ranga Singh v Union of India[26] upheld the death sentence awarded u/s 302 read with section 34, IPC by the Session Court and confirmed by Delhi High Court for the brutal murder of two children-Sanjay and Geeta. The accused were notorious professional murderers and kidnappers of children for extortion. 

Illustration 3:- Kehar Singh (Indira Gandhi murder case)

In Kehar Singh v Delhi Administration[27], the apex court confirmed the death sentence awarded by the trial court and maintained by High Court to the three appellants Kehar Singh, Balbir Singh and Satwant Singh for entering into conspiracy and committing murder of Smt. Indira Gandhi u/s 302, 120B, 34, 107 and 109 of IPC.[28] The court held that the murder is of the rarest of rare cases in which extreme penalty is called for to assassin and his conspirators. It is indeed a gruesome murder committed by the accused who were the security guards of Mrs Gandhi

Illustration 4:- Kheraj Ram

The apex court in State of Rajasthan v Kheraj Ram[29] held that the murder of the helpless women and innocent children committed in extremely brutal, cruel and dastardly manner call for the extreme punishment being one of the rarest of rare cases.[30] On suspecting the chastity of his wife and that she did not beget the children through him fatally assaulted his wife, two children and his brother-in-law when they were asleep. As a result of the injuries sustained the victims died.

Illustration 5:- the Cold blooded murder of a family of six

The Supreme Court in M. A. Anthony v State of Kerala[31] upheld the death sentence awarded to the accused of the cold-blooded murder of a family of six persons, falling within the rarest of rare category. 

Illustration 6:- Death penalty for Red Fort Attacker

The Supreme Court on 11th August 2011 upheld the death penalty awarded to Pakistan Lashkar-e-Taiba militant Mohammad Arif aka Ashfaq for killing three Army jawans during an attack on the Red Fort in Delhi.[32]

Illustration 7:- Death penalty for Honour Killing

In the judgment of Bhagwan Das v Union Territory of Delhi[33], delivered in May 2011 Supreme Court directed, the courts to view ‘honour killing’ as cases of ‘rarest of rare’ category for awarding death penalty to the accused.

 Frequently asked Questions (FAQs)

  1. What can be considered as mitigating circumstances?

As per the obiter dicta in Bachan Singh case some of the mitigating factors which the Court shall take into account the following circumstances:

  • Circumstances under which the offence has been committed.
  • Age of the offender
  • The frequency of committing such offences
  • The possibility of reformation and rehabilitation of the accused.
  • He was morally justified in doing such acts in the light of facts and circumstances of the case.
  • The existence of coercion, duress, undue influence etc
  • Mental disability
  1. What can be considered as aggravating circumstances?

Basing reliance on Bachan Singh case, the following can be considered as aggravating circumstances:-

  • Murder committed with previous planning and extreme brutality
  • Murder involves exceptional decadence
  • Murder of any member of the armed force of the Union, police force or a public servant (i) on duty (ii) anything done or attempted to be done in the lawful discharge of his duty whether or not at the time of the murder he was such member or public servant
  • Murder of a person in the course of lawful discharge of his duty u/s 43, 37 and 129 of CrPC.
  1. Is there any guideline for determining ‘rarest of rare’?

In Machhi Singh v State of Punjab[34], a 3-Judge Bench observed that in rarest of the rare cases when collective conscience of the community is shocked to such an extent that it expects infliction of the death penalty from the holders of the judicial power, the Court said that the community may entertain such a sentiment in the following circumstances[35]:-

  • The manner of the commission of the offence
  • The motive for the commission of the offence
  • The societal impact of the offence on the whole
  • Facts and circumstances leading to the offence
  • The vulnerability of the members of the society at the hands of the offender
  • Magnitude of crime
  • The personality of the victim of the offence
  1. For which offences death penalty is awarded in India?

The offences for which death sentence is provided in India can be classified into two broad categories:-

A. Death penalty under IPC

  • Section 120B – Criminal conspiracy to commit any offence punishable with death, if committed in consequence thereof for which no punishment is prescribed
  • Section 121 – Waging or attempting to wage war or abetting ageing of war against the Government of India
  • Section 132 – Abetment of Mutiny actually committed
  • Section 194 – Giving or fabricating false evidence upon which an innocent person suffers death
  • Section 302 –Murder which may be punished with death or life imprisonment
  • Section 305 – Abetment of suicide of a minor, or insane, or intoxicated person
  • Section 307 – Attempt to murder by a person under sentence of imprisonment for life, if hurt is caused
  • Section 364 A – Kidnapping for ransom, etc.
  • Section 369 – Dacoity accompanied with murder
  • Section 149 r/w 34 – Joint liability extending the principle of constructive liability on all the persons who conjointly commit an offence punishable with death, if committed in furtherance of common intention or common object of all
  • Section 109 -Abetment of offences punishable with death

B. Death penalty under laws other than IPC

  • The Indian Airforce Act, 1950
  • The Army Act, 1950
  • The Navy Act, 1950
  • The Commission of Sati (Prevention) Act, 1987
  • The Narcotic Drugs and Psychotropic Substances Act, 1985
  • The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
  1. Is there any mandatory death penalty in India?

In India, a capital punishment used to be mandatory u/s 303 of IPC. But in 1983 Supreme Court in Mithu Singh v State of Punjab[36] declared section 303 ultra vires the Constitution on the ground that it violates article 14 as also right to life conferred under article 21.  

  1. What is the criticism of rarest of rare doctrine?

The rarest to rare doctrine can be criticised on several points. One such ground is ‘ambiguity in the application of the doctrine’. Here uncertainty implies death penalty given in one case as against the other wherein both the cases have identical facts. Bharu Singh v. State of Rajasthan[37] and Amruta v. State of Maharashtra[38] are the classic examples of such ambiguity. In both of these cases, the accused suspected the fidelity of his wife and killed her. However, in the former case, the accused was given capital punishment while in the latter case the Court refused to hold it as a ‘rarest of rare’ case.   

Another set of example is Dhanajoy Chatterjee v. State of West Bengal[39], Kumudi Lai v. State of Uttar Pradesh[40] and State of Maharashtra v. Suresh. Both of them involved rape and murder of a teenage girl yet the Apex Court pronounced different verdicts. Dhanajoy Chatterjee was sentenced to death. The Court in Kumudi Lal case did not confer the death penalty on the accused for the rape and murder of 14-year-old girl. The third case is about the rape and murder of a 4-year-old girl yet the offender escaped death.

In the horrifying case of Santosh Kumar Singh v Union Territory of Delhi[41] (Mattoo Murder case), though Santosh Kumar Singh was convicted of raping the victim and breaking every bone in her body his behaviour was still not considered savage enough to label the case “rarest of rare”.[42] Similarly, in the celebrated tandoor murder case, the apex court step back from conferring death sentence on the ground that it Sushil Sharma’s jealousy that led him to murder his wife Naina Sahni (reports referred to her suspected affair with Congressman Matloob Karim) does not deserve the death penalty.

There appears no valid justification for making such a farfetched distinction between life and death between similar sets of facts. The two cases of Om Prakash v State of Haryana[43]and Shiv Ram v State of Uttar Pradesh[44]. In the former case, the accused who was working in BSF was acquitted where 7 persons were murdered in order to wreak vengeance over a plot of land whereas in the latter case death sentence was awarded for the murder of five persons including a 10-year-old boy.  Thus, one can visualise that there may be situations where a miscarriage of justice might take place in some cases under similar circumstances.

  1. Should rarest of rare doctrine be abolished?

In recent times what gain more priority is what type of cases should be labelled as rarest of rare. The judgment also blatantly exposes the deep-rooted patriarchy. On analysing theabove-stated decisions, it can be concluded that rarest of rare doctrine has become ‘judge-centric’. It’s time to redefine ‘rarest of rare’.

 Edited by – Sakshi Agarwal

Quality Check – Ankita Jha

Approved & Published by –  Sakshi Raje


[1]Ravji alias Ram Chandra v. the State of Rajasthan, (1996) 2 SCC 175.  Retrieved on 17/08/18 from http://www.manupatra.com/manufeed/contents/PDF/633766107875833664.pdf.

[2] Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646.

[3] AIR1978SC597: (1978) 1 SCC 248: (1978) 2 SCR 621: (1978) 2 SCJ 312.

[4]Supra note 2.

[5]Dr Jai Raj Janak, Death Penalty(Regency Publications, New Delhi, 2005) at pg- 120.

[6] AIR 1980 SC 898.

[7] Pramod Kumar Das, Supreme Court on Rarest of Rare Cases (Universal Law Publishing Co. Pvt Ltd., New Delhi, 2011) at pg-104.

[8] (2009) 6 SCC 498.

[9]Death sentence in Rajiv case will mean a double penalty: ex-judge, The Hindu, 11th Aug 2016.  Retrieved on 17/08/18 from https://www.thehindu.com/news/national/death-sentence-in-rajiv-case-will-mean-double-penalty-exjudge/article4449592.ece.

[10] AIR1973SC947: (1973) 1 SCC 20: (1973) 2 SCR 541: (1973) 2 SCJ 365: 1973 Cr LJ 370.

[11]V.N. Shukla, CONSTITUTION OF INDIA, (13th Edition, EBC Publication Ltd., Lucknow, 2015) at pg-231.

[12] Ibid.

[13] (1983) 2 SCC 248.

[14] (1983) 2 SCC 344.

[15] The Death Penalty under International Law, International Bar Association. Retrieved on 06/08/18 from https://www.ibanet.org/Human_Rights_Institute/About_the_HRI/HRI_Activities/death_penalty_resolution.aspx

[16]Eric Prokosch, Human Rights v. The Death Penalty: Abolition and Restriction in Law and Practice (December 1998), in The Death Penalty: Abolition In Europe (Tanja Kleinsorge& Barbara Zatloka eds. 1999), Chapter 1. Retrieved on 28/09/18 from http://web.amnesty.org/ai.nsf/Index/ACT500131998?OpenDocument&of-THEMES\DE ATH+PENALTY

[17] Id.



[20] 428US195(1976).

[21] (1995)16HRLJ133.

[22] John Paul Truskett, Death Penalty, International Law, and Human Rights, Tulsa Journal of Comparative and International Law, 11, 557, 560-563.


[24] Id.

[25] AIR1949East Punj321.

[26] AIR1981SC1572.

[27] AIR1988SC1883.

[28]K.D.Gaur, Textbook on Indian Penal Code, (5th edition, Universal Law Publication, 2015) at pg- 491.

[29] (2003)8SCC 224: JT 2003 (7) SC 419: (2003) 6 SCALE 757.

[30]Supra note 28 at pg- 495.

[31] AIR2009SC2459.

[32] Supra note 28 at pg – 498.

[33] AIR2011SC1863: (2011) 6 SCC 396.

[34] AIR 1983 SC 957: (1983) 3 SCC 470: (1983) 3 SCR 413: 1983 (2) Crimes 268.

[35] Supra note 28 at pg-486.

[36] AIR1983SC473.

[37] (1994) 2 SCC 407.

[38] AIR 1983 SC 629.

[39] (1994)2SCC220.

[40] (1999)4SCC50.

[41] AIR2010SC2357.

[42] It’s time to define ‘rarest of rare’, Hindustan Times, 14th Oct 2013. Retrieved on 15/07/18 from https://www.hindustantimes.com/india/it-s-time-to-define-rarest-of-rare/story-euzhOF3GJ7IxDukaFSHXNM.html.

[43] (1999)3SCC19.

[44] AIR1998SC49.

Soma Sarkar
I am Soma Sarkar from Chanakya National Law University, Patna pursuing BA LLB (Hons.). My areas of interest include Criminal laws and Arbitration laws. I have a passion for research and legal writing. I am also an active member of Legal Aid Cell of my college and also member of Eucotopia, the environmental group of my college. My goal is to become an arbitrator.