How the apex court defines 'rarest of rare'

Judicial discussions on the parameters for the death penalty have taken centrestage

In August 2005, the Supreme Court awarded the death penalty to Afzal Guru, an accused in the 2001 attack on Parliament, after holding his was a "classic example" of a "rarest of rare" case. It said the "collective conscience of the society" would only be satisfied if the capital punishment was awarded to Guru.

Last year, the apex court handed out the death sentence to Ajmal Kasab, involved in the 2008 Mumbai terror attack, ruling that gallows remained the "only" punishment for the man who had "no feeling of pity and killed without the slightest twinge of conscience". While the verdict in Guru's case did not delve on the "aggravating" and "mitigating" factors balancing these have been used as a standard to decide whether to award the death penalty Kasab's judgment duly considered it.

These two cases could be similar in view of the fact that they related to terrorism, but the fact remains that law mandates punishment only in accordance with crimes and their punishments under the IPC. So, the cases of Guru and Kasab are no different from any other case in terms of charges of murder, waging war against country, sedition, etc. Several recent SC judgments have, however, advocated a re-examination of the parameters that decide which crimes qualify for the awarding of capital punishment under the "rarest of rare" criterion. Judicial discussions on conclusive parameters for the death sentence have taken centrestage, and several judgments expressing what constitutes the "rarest of rare" are being delivered.

The first such judgment came in November 2012, when Justice Madan B. Lokur, authoring a verdict in a murder case regretted that the sentencing has become "judge-centric", rather than based on the principles of sentencing that require considering crime and criminal equally important. He pointed out that the courts continue to focus only on the severity of the crime, while ignoring other circumstances relating to the criminal.

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