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.

Subsequently, in a February judgment, another SC bench saved from the gallows a man sentenced to death for killing his wife and daughter when he was out of jail on parole. He had been jailed for 12 years for raping the daughter when she was a minor. The SC adopted a "humanistic" approach and said this case was not "rarest of rare", since the possibility of the convict's reformation was not foreclosed. However, a few days later, the SC sentenced to death a man convicted of killing a seven-year-old boy in another judgment. While justifying this case to be "rarest of rare," the court also said that the murder of the "only male child" would have caused extreme misery to the parents. A subsequent verdict involving two men on the death row for killing a couple and their two children decided "to go a little further" and explain the test for awarding death sentences. It said that after drawing out the aggravating and mitigating circumstances, the "rarest of rare" test will be required. This test, the SC said, will depend on the "will of [the] people" and "perception of the society", and will not be judge-centric. The judgment read that the death penalty would "depend on the perception of the society, whether the society will approve the awarding of [the] death sentence to certain types of crime, or not".

Now, when different SC benches are apparently suggesting that the earlier Constitution Bench verdicts are not being applied uniformly, it would be interesting to see if the apex court delivers another Constitution Bench judgment to suit the present moment.

utkarsh.anand@expressindia.com

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