Questioning the Administration of the Death Penalty in India
National Law University Delhi
The recent hanging of the 1993 Bombay blasts convict Yakub Memon has fanned the already raging debate regarding capital punishment in India. In this case, the doctrine of “rarest of rare” was applied yet again, in a quest to satisfy the collective conscience of Indian society. The phrase “rarest of rare” comes from a judgement of the Supreme Court of India in Bachan Singh v. State of Punjab, 2 S.C.C. 684 (1980), where the constitutionality of the death penalty was called into question due to the obfuscation in its implementation. The constitutionality of the death penalty was upheld, but its application was restricted to the “rarest of rare” cases to curtail arbitrariness in application.
The 35th Report of the Law Commission of India upheld capital punishment but did not recommend that the courts may award the death penalty only in special cases. However, contrary to this report, an amendment was made to Section 354(3) of the Code of Criminal Procedure requiring “special reasons” to be cited for awarding the death sentence in a particular case. The phrase “special reasons” was interpreted in the landmark judgement of Bachan Singh to mean that the normal sentence for murder should be imprisonment for life, and only in the “rarest of rare” cases should the death penalty be imposed. This case propounded that “aggravating and mitigating circumstances” be taken into account while awarding the death penalty, and also opined that Section 354(3) of the Code of Criminal Procedure lays down the due process framework for the death penalty, in light of expanding Article 21 jurisprudence in cases such as Maneka Gandhi v. Union of India, 1 S.C.C. 248 (1978). For surrounding circumstances, Bachan Singh places reliance on pre-sentence hearings as under Section 235(2) of the Code of Criminal Procedure.
Even though cases such as Machhi Singh v. State of Punjab, 3 S.C.R. 413 (1983) attempted to clarify its scope and application, the doctrine of ‘rarest of rare’ remains veiled in ambiguity. Owing to the lack of an authoritative definition, this doctrine is coloured by the values and beliefs of the judges in question. In 2008, Amnesty International India and People’s Union for Civil Liberties (Tamil Nadu & Puducherry) conducted a study titled “Lethal Lottery: The Death Penalty in India,” analysing death penalty cases decided by the Supreme Court of India from 1950 to 2006. The report confirmed that the administration of the death penalty in India has long been an arbitrary exercise, and it was observed that under similar circumstances some convicts were awarded the death penalty and others were not. Over the years, those who make the case for abolition of the death penalty have relied heavily on the arbitrariness of the very doctrine behind its administration. The most recent 262nd Report of the Law Commission of India stated that “arbitrariness has remained a major concern in the adjudication of death penalty cases in the 35 years since the foremost precedent on the issue was laid down.”
The various issues stemming from this doctrine and its application have been evaluated in this paper. The main object is to present a critical analysis of the application of the “rarest of rare” doctrine in the administration of the death penalty in India. From this evaluation, the researcher shall determine whether the issues of subjectivity and arbitrariness mandate its abolition.
 Malini Parthasarathy, A Case for Mercy, The Hindu (Jul. 23, 2015), http://www.thehindu.com/opinion/editorial/yakub-memon-death-sentence-a-case-for-mercy/article7452747.ece (last visited Apr. 12, 2016).
 Bachan Singh v. State of Punjab, 2 S.C.C. 684 (1980).
 Supra, note 1.
 Maneka Gandhi v. Union of India, 1 S.C.C. 248 (1978).
 Supra, note 2.
 Machhi Singh v. State of Punjab, 3 S.C.R. 413 (1983).
 262nd Report: The Death Penalty, Law Commission of India (2015), http://lawcommissionofindia.nic.in/reports/Report262.pdf (last visited Mar. 10, 2016).