“Rarest of rare” needs review
Judgments avoiding death penalty to cruel, cold-blooded rapist-murderers in two cases — the Priyadarshini Mattoo case and the Pratibha Srikantamurthy case in Bengaluru — has revived the debate over whether capital punishment should be awarded in deserving cases and whether it can deter others from committing such crimes. Our constitution and statutes recognise capital punishment as a deterrent to heinous crimes. Hence Section 302 of Indian Penal Code prescribes death penalty or life imprisonment for murder. In response to questions raised by human rights activists, the Government of India, too, has made it clear it is not in favour of abolishing the death penalty. In November last year, the UN General Assembly adopted a moratorium on executions with a view to abolishing the death penalty, but India voted against the resolution. The matter is under deliberation, and India continues to maintain its position. Former CJI and chairman of the National Human Rights Commission Justice K.G. Balakrishnan has also favoured keeping the death penalty as a ‘deterrent measure’ at a time when crime is on the rise. He noted that capital punishment is awarded in the “rarest of rare” cases and there were adequate safeguards in the law in this regard.
The “rarest of rare” principle was devised by the constitution bench of the Supreme Court in the ‘Bachan Singh’ case in 1980. It has become the guiding principle for judges to decide between awarding capital punishment and life imprisonment. The principles came up for reconsideration in the ‘Machhi Singh’ case in 1983. The Supreme Court then enumerated five categories of murders to apply the “rarest of rare” principle.
But the time has come for the Supreme Court to revise these principles, taking into account the rising rate of heinous crimes, the fact that more sophisticated methods of committing murders are available to criminals, ones that may not look so brutal, but where, nevertheless, the intention is laced with brutality. The ‘Bachan Singh’ judgement was passed 30 years ago. A larger constitutional bench of the SC should reconsider the “rarest of rare” principles.
(J.S. Attri is a senior advocate in the Supreme Court)
The “rarest of rare” principle was devised by the constitution bench of the Supreme Court in the ‘Bachan Singh’ case in 1980. It has become the guiding principle for judges to decide between awarding capital punishment and life imprisonment. The principles came up for reconsideration in the ‘Machhi Singh’ case in 1983. The Supreme Court then enumerated five categories of murders to apply the “rarest of rare” principle.
But the time has come for the Supreme Court to revise these principles, taking into account the rising rate of heinous crimes, the fact that more sophisticated methods of committing murders are available to criminals, ones that may not look so brutal, but where, nevertheless, the intention is laced with brutality. The ‘Bachan Singh’ judgement was passed 30 years ago. A larger constitutional bench of the SC should reconsider the “rarest of rare” principles.
(J.S. Attri is a senior advocate in the Supreme Court)
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