ISSN (O) : 2584-1378


AUTHOR’S NAME : Priyanka Jain
UNIVERSITY - University of Delhi, Campus Law Center, Faculty of Law



While India has been a spiritually inclined State which bows before the will of the divine, at the same time it is under a responsibility to develop scientific temperament and to develop itself to reach to the global level. That is possible with the robust legal system which flourishes the ideals of justice socio-economic and political to the advantage of its society. No one can imagine a space to survive in a palace where no justice can be seen or even felt.

Hon’ble Supreme Court from time to time by way of setting precedents paved a way to think and rethink contemporary challenges or ever-lasting debates on certain issues like life, education, gender justice, mercy-killing and most widely disputed the Capital punishment. Capital punishment under the Indian Penal Code, 1860 was inserted by Lord Macauley with an intent to use it sparingly. But he didn’t specify the circumstances or any guiding light or a criteria for its effective administration by the justice holders. First recorded evidence of the death sentence was of the great warrior of freedom “Khudiram Bose” who was hanged on August 11,1908 at the age of mere eighteen. Later in 1931 revolutionary freedom fighters Bhagat Singh, Rajguru and Sukhdev were hanged till death for the murder and conspiracy charges.

In independent India one Nathuram Godse assassinated Mahatma Gandhi for his ideologies and he was awarded with the Death Penalty. The Supreme Court has time to time delved and reiterated the practice of awarding the Death Penalty and evolved Indian Criminal Jurisprudence.


The doctrine of stare decisis is relevant for the application of decisions of the higher courts to the lower courts. Under the Constitution of India it has been recognised by Article 141. Article 141 sets out that the law declared by the Hon’ble Supreme Court of India shall be binding on all the courts. Now, the question arose, whether the Supreme Court itself is bound by its earlier decision? This dilemma was resolved in the case of “Bengal Immunity Co. Ltd. v State of Bihar AIR 1955 SC 661.”The court held that India has a Federal constitution where by no means it is easy to amend the Constitution if an erroneous judgment is delivered, or the Constitution is interpreted in a wrong way. The erroneous interpretation may remain unrectified or perpetuated which may cause great detriment to the well being of the public. The court found the decisions of the Supreme Court of America suitable and to reason if the previous decisions of the Supreme Court may be disregarded or overruled. Since, the background of the Constitution derives its force from the Government of India Act, 1935 it made clear the expression “to all courts” refers to all subordinate courts. Question of the life sentence should not be taken as the one time decision it is subject to the judicial review from time to time as per the situation, time, advancement of the society.In “Nathuram Godse v. The Crown[1949]CriLJ 834 by the Privy Council.This was perhaps the first case where the doctrine of rarest of rare cases was applied even much earlier than its promulgation. It was related to the killing of  Mahatma Gandhi , a public figure, leader, and former barrister on the night of January 30th, 1948  by a youth named Nathuram Godse. He was hanged on November 15, 1949 at Central Jail, Ambala. In “Jagmohan v State of Uttar Pradesh AIR 1973 SC 947 the court discussed following two circumstances:

  • Aggravating Circumstances: Aggravating circumstances or factors refers to those conditions or situations which increases the gravity of the offence thereby culpability resulting in maximum punishment or harsher punishment than the minimum penalty prescribed for that offence. For example, the intention of the accused before, during and subsequent to the offence. Whether he decided to mutilate the body to an extent that it cannot be recognised without medical or forensic intervention. Further, extent of violence, type of weapon used in white-collar cases may include abuse of authority.
  • Mitigating Circumstances: Mitigating circumstances or factors are opposite of aggravating factors in the sense they lessens the gravity and punishment.It includes defences including private defence, necessity, insanity, involuntary intoxication, or any factor satisfying the reasonable and prudent person test, which is a legal concept in common law that says in a given set of circumstances how anyone would have conducted himself?

On the basis of above mentioned bifurcation it led to recording of special reasons under section 354(3) of Code of Criminal Procedure, 1973 before arriving at the decision of awarding the Death Penalty.


Section 354(3) requires a judge to justify the award of the Death Penalty by citing special reasons for court record. Even if the punishment is alternative to the Death Penalty even then reasons for its justification are compelled. This supports the fairness and non arbitrariness of the provision. Jagmohan’s case was decided in 1972 when CrPc of 1898 was in force. Which left the choice of the punishment to the discretion of the court. Now after the introduction of CrPC, 1973 the Death Penalty is no more a casual punishment, it is no more a rule or matter of fact or law. It is subject to the prudence of the court.Also in Maneka Gandhi v. Union of India AIR 1978 SC 597 it was held that to ensure non arbitrariness and fairness the test of Articles 14, 19 and 21 should be complied with. However, this interpretation was not available at the time when Jagmohan’s case was decided. There are two views for the Death Penalty: One is Abolitionist view and the other is the retentionist view. Abolitionists view this Section 354(3) of CrPc, 1973 as a license for abolition of the Death Penalty while the retentionist look at it as a provision which justifies the Death Penalty. In Rajendra Prasad v State of Punjab AIR 1979 SC 916 majority of the judges observed that under the human rights jurisprudence in Constitution, it is permissible to deviate the accused from the physical or biological existence if the security of State and society, interest of the community,public order as provided under Article 19 of the Institution from 19(2) to 19(6) is under a demolish and that taking away of life can be done within the permissible limits of Constitution as under Article 21 in accordance with the “procedure established by the law”. Justice Sri Krishna Iyer stressed that corporeal death is alien to the fundamental rights enshrined under Part III of the Constitution. Restriction to the fundamental rights is acceptable only when they are reasonable. Arbitrary means unequal. This way the Supreme Court had an opportunity to discuss the abolition of the Death Penalty.


After this case, in “Bachan Singh v State of Punjab AIR 1980 SC 898  the Court opined that the “special reasons” to be recorded under the Section 354(3), CrPC,1973 obviously means “exceptional reasons” based on exceptionally severe circumstances of the particular offence not only relating to the crime but also of the criminal. It clearly means that “special reasons” includes previous conduct of the accused, his mental state, if he was morally right to commit said offence, duress, necessity, depraved character of the offender. If the Indian Penal Code, 1860 or any substantive law provides for any other punishment in place of the Death Penalty then these special reasons with explanation need to be mentioned. The extreme punishment deserves extreme circumstances. Further the Court held that the judges should not be bloodthirsty. Hanging anyone was never good for them. Sentencing requires more scrupulous care and humanistic concern. Life term should be the rule and death sentence is an exception. Dignity of human life asserts resistance to take life away through the instrumentality of law. This ought not to be done except the “rarest of rare cases” where the alternative mode of punishment is foreclosed without any question. However, the Court was silent on the meaning of the phrase “rare of rarest cases”. This caused further confusion for the subordinate courts as to which to regard “rarest of rare”and which to regard general case.Later, Machhisingh v State of Punjab AIR 1983 SC 957 Hon’ble court provided clear guidelines to ascertain the “rarest of rare” cases along with few questions to be considered while ascertaining the same. It discussed a few reflections of life sentences. The court said why a community does not endorse the principle of “death penalty in no cases” is backed by the principle of “reverence of life”. It states the importance of life that any life be it human or animal cannot be compromised. It’s a staunch supporter of “live and let live”. But when any member of society unfollows this principle then the society is not bound by the rigors of this doctrine. Moreover, every member of the community should be able to live the life without any danger of he or she being threatened with respect to his or her life, as community is expected to be a protective sheath for the every member of the community and also the rule of law accord to it, that is no one is above the law. Everyone has to follow the doctrine equally, if someone violates it he shouldn’t be allowed to take its undue advantage. This fear of being brought to the books is a deterrent for anyone. Every community member is socially obligated under this principle of reverence. When the community thinks that for self-preservation the murderer should be killed it can ask for the Death Penalty from the justice holders irrespective of their personal opinion with regard to retention or desire for the Death Penalty. But society cannot do it in every case. Only those circumstances which shatters the conscience of the society as a whole can be taken under the purview of the “rarest of rare cases”. Community may desire to set the Death Penalty in the motion when:

  • When crime was driven by such a motive so as to shock the entire community that suggest total meanness;
  • When the manner of commission was so grotesque, horrible that a man of ordinary prudence even cannot imagine;
  • Anti-community or abhorrent nature of the offence;
  • When the offence has more victims like in mass-murder;
  • When killing of a child which cannot provide any instigation to resort to invocation of the protection of private defence;
  • When the assailant was in the position of dominating the will of the victim because of being more powerful, more wealthy or in seniority;

Examples may include: Acid-attacks, Bride-Burning, multiple attacks on the victim’s body, terrorism.

While applying to these guidelines following questions may be considered:

  • Is there any uncommon factor regarding the crime?
  • Are there any such circumstances of the crime which outpower the mitigating circumstances of the accused?


In Santosh Kumar Singh v. State (through CBI) AIR 2011 SC 3565 Court found that the accused after the acquittal started a new chapter in life by marrying and got a daughter. In the Indian context he has burdened with new responsibilities once again, it increases mitigating circumstances of the accused. So, the Death Penalty commuted to the life long imprisonment.

In Mohinder Singh v State of Punjab (2013) 3 SCC 234the Hon’ble Supreme Court relied on the principle that awarding of life term is a rule and the Death Penalty is an exception. It observed that the application of the doctrine of the “rarest of rare” cases  differs from case to case. A deliberately chalked out crime, carried out quite meticulously in a diabolic manner,shattering the conscience of the community at large, and thereby disturbing the delicate moral fiber of the society requires imposition of capital punishment.

In Mohd. Ajmal Mohammadamir Kasab v. State AIR 2013 SC 3681 , accused was a terrorist and shook the conscience of the entire country through its attack on Mumbai’s Taj Hotel in 2008. Several people were killed and injured. Apparently he was a threat to the peace and integrity of our country. Court found this case under the “rarest of rare case” and hence, awarded the Death Penalty to the accused.

In Mukesh And Anrs v, State of NCT of Delhi (2017) SCC 719 Hon’ble Supreme Court held that however, life sentence is an exception and the Death Penalty but state of mind of the one receiving the death sentence and the one who is receiving life imprisonment can be different mentally and psychology. This case falls under the purview of “rarest of rare” as it shattered the dignity of a young woman that too diabolically. It has provided an unspoken agony and fear in the mind of the public. To satisfy lust, the accused have crossed all the limits.Lust has taken such an evil form. Hence, confirmed the Death Penalty to all four accused.

In Sunder@Sunderrajan v State by Inspector of Police(2023), Supreme Court held that the award of the death sentence can be commuted to the life term if there is a chance of reformation of the accused.


The Supreme Court is the guardian of the constitution, fundamental rights where right to life and personal liberty, freedom of expression, doctrine of proportionality have always been taken in its consideration while deciding any important question of law.The court has taken a stance on  capital punishment that it needs to be interpreted from time to time. Every case deserves a special interpretation. Mental state of the accused and the victim, previous circumstances, history of both the accused and the victim are the important points of consideration. Conduct prior. During or subsequent to the commission of the offence also acts as a guiding light. Like in the case of Nathuram Godse, Nathuram showed no remorse, in fact, he was happy about his wrong doing. In some cases during interrogation of the accused, during investigation and during inquiry and cross-examination the court has found that the accused can be reformed like in the case of ‘Sunder@Sunderrajan’ then in such cases capital punishment does more harm than good. “Rarest of rare cases” are indicative of those who are beyond reformation, not for first time offenders. Modus-operandi, the way of commission of the crime, is always gruesome or not something emanating from the mind of the ordinary prudent person. The cases of terror attacks definitely fall under the umbrella of the ‘rarest of rare cases’.These attacks attempt to disturb the peace in the society and kill a lot of people. These are done by those people who are full of hatred or stuck with certain values which do more harm than good to the society.

All crimes are horrible, we cannot classify crimes as less horrible or more horrible. It is only the mental well being of the assailant, gravity, circumstantial triggers, general behaviour and way of execution is the determinative of the categorisation as “rarest of rare” case. It is not public outsurge or public brouhaha which is indicative of the punishment to be granted. However, if a case has fallen under the rarest of rare cases, then certainly it will call for public hue and cry.


The Hon’ble Supreme Court has always tried its best to bring forth all the aspects of punishment related to the crime before pronouncing its verdict. If any one has crossed all the limits of shame, morality,humanity, then we can easily call that fellow as beyond reformation, an incorrigible. Instead of establishing a class of habitual offenders it’s better to eradicate them from society by way of capital punishment. Since capital punishment has irrevocable character, it is made imperative on the court to record special reasons before finalising its judgment.It is better to acquit the ten guilty people in place of convicting one innocent. Life imprisonment is a rule but life sentence is an exception, it signifies the human rights aspect that life is priceless, precious so it cannot be taken away without the proper procedure of law. If the capital punishment will be given arbitrarily this will go against the impartial character of the judiciary. Justice holders should always be without fear and favour, affection and ill-will. Too prompt death sentences shows bias of the judiciary towards the plight of the victim and not providing any death sentence may signify bias towards the accused because he has a strong defence from a top notch lawyer. In the factual matrix of the conditions of the accused and the victim that also without their socio-economic situation, the doctrine of “rarest and rare case” provides good ground to decide the award of death and imprisonment.

However, this doctrine has always been highly disputed because of disparity in Indian living conditions, work culture but it still holds good to impede arbitrary death sentences and secure the ends of justice.

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