Doctrine of Rarest of the Rare Case



Yashraj Bais

10 August 5:30 PM


Introduction: The Doctrine of the Rarest of the Rare Case is a hugely crucial as well as significant Doctrine from legal Point of view in the present era to understand.. I will make my able readers to understand the details in more brief regarding this Doctrine, but before the same I just need to sketch an outline in your mind regarding its implication and application in practical legal world. It is pertinent to mention here that the “Doctrine of Rarest of Rare” is neither mentioned in any statute, law or Act, nor it is founded in any legal book or reference rather it is simply a result of the old practices and various conventions being followed by our Courts since ancient times in India. The Court applies this Doctrine in deciding the cases of  capital punishment having regard to all other surroundings and other factual of the case thereto, and if it is found that the case falls within the purview of this Doctrine which is extremely shocking and mind-shaking and commitment of such crime is an exception, thereafter having regard to its sensitivity or gravity ,decision of the capital punishment is pronounced by the Court, as the Judiciary usually refrains its role from giving the capital punishments to the accused instead in maximum sensitive cases it turns the punishment of the accused to life imprisonment instead of death penalty.

Scope and Evolution of the Doctrine: It is significantly important to understand here that this doctrine is not explicitly defined anywhere in any statute or book but it is applied and determined having regard to sensitivity and gravity of crime. It is pertinent to mention here the details of two major doctrines that is being used by Hon’ble Judiciary every-time during trial stage i.e. known as ‘Adjudication’ for awarding  proportionate punishment to accused of the crime. They are as follows:

1.      Doctrine of Mens Rea: The doctrine of Mens Rea states that ‘Where the mind is guilty”. means intension of the accused to commit the crime is observed by the Court before awarding him any punishment for his committed crime.

2.      Doctrine of Actus Reus:The Actus Reus is where the offender or the Accused coverts his criminal intension into an active action which results into injury to plaintiff.


The Court uses these two following doctrines to adjudge the sensitivity and gravity of crime and then looks forward that is the Doctrine of Rarest of the Rare Case in applicable in that particular case or not?  It is also important to mention here that for awarding even a simple punishment to any person who is accused in the case, the presence of both Mens Rea and Actus Reus is mandatory, because without which the criminal mind and legal injury caused to the defendant cannot be ascertained by the Hon’ble Court in any of the cases across India. 

For the first time, it was held by Hon’ble Supreme Court of India in the case of Maneka Gandhi v. Union of India, AIR 1978 SC 597 that death penalty can only be awarded in special circumstances. It was duly determined that awarding death penalty to any citizen or otherwise for a crime is an extremely serious matter, and henceforth it is an exceptional punishment. Therefore if there is any chance or provision in the statute for any punishment lesser than the death punishment, so it must be awarded to the accused and such practice must be followed by the Judiciary as far as possible.

After that in the most famous and landmark case of Bachan Singh v. State of Punjab, AIR 1980 SC 898 the five-judges constitutional bench at Hon’ble Supreme Court of India held that formally the punishments for the convicts of murder is life imprisonment to which the death punishment is an exception. The death penalty should be awarded only in rarest of the rare case where no alternative punishment is available and the death punishment is utter most prominent and seems necessary thereto to the Judiciary. This was the first time in the history of our judiciary that the Court acknowledged the Doctrine of Rarest of the Rare Case. 

Statutory Validity of Doctrine of Rarest of Rare Case in India: The Doctrine of Rarest of the Rare Case is majorly used in India in the murder cases and in some anti-terrorist laws like TADA, POTA, etc. The major provisions in the Indian Penal Code, 1860 under which the death sentence may be awarded to the accused of the crime are Section 302 of Indian Penal Code, 1860 (Punishment for Murder), Section 120-B of Indian Penal Code, 1860 (Criminal Conspiracy), Section 305 of Indian Penal Code, 1860 (Abetment of Suicide), etc. Now what  Constitution of India and certain judicial pronouncements say in this regard is deliberately important for us to understand.

 For the first time in the history of India the constitutional validity for the applicability of  Doctrine of Rarest of the Rare Case and death penalty was challenged in case of Jagmohan Singh v. State of UP, AIR 1973 SC 947 in which the constitutional validity of Section 302 of Indian Penal Code, 1860 i.e. punishment of murder which may be a death sentence was duly challenged by the petitioner as violative of Article 14 (Equality Before Law), Article 19 (Freedom of Life and Speech) and Article 21 (Right to Life with Personal Liberty) of the Indian Constitution. It was held that death punishment was completely legal and constitutional if it has been awarded having pursuance to procedure established by law. The death penalty can be awarded to the accused of murder if it seems reasonable and is widely in public interest. If the trial is conducted according to procedure established in the Code of Criminal Procedure, 1973 and by virtue of which deriving on the conclusion of death penalty is justifiable and acceptable in the eyes of law as well as Judiciary so it may be awarded.

 After analysis of the above it can widely be said that death punishment may be awarded by  Court, if it seems just and reasonable. The Court always act on the notions of justice apart from the statutory interpretations of law, therefore ensuring the public interest and acting in furtherance of justice is more important for a Court rather than giving a narrow interpretation regarding any provision of Law and depriving the aggrieved from his rightful entitlement of Justice.

 If we refer the case of T.V. Vaatheeswaram v. State of Tamilnadu, AIR 1982 2 SCC 248, it was held by Hon’ble Court that if there was an in-ordinate delay exceeding more than two years in the execution of the death sentence, then it entitles a death convict to get his punishment of death being converted into life imprisonment. However, later on the aforesaid decision was overruled in the case of Sher Singh v. State of Punjab, AIR 1983 2 SCC 344.

Conclusion: At the end it can widely be concluded that Doctrine of Rarest of the Rare Case holds a very prominent place while deciding the murder cases in India as well as in many other developed countries of the world like United States of America (USA), UK, South Africa, etc. I probably can expect my able readers to assume that moment while a Judge is awarding the death sentence to the offender of any crime, which is the most crucial and sensitive moment for both the Court and the offender as one human life is being taken judicially and legally before the time. It is now crystal clear that the death punishment is legal if it is awarded having pursuance to the procedure established by law and is not violative of any fundamental right of an individual as enshrined in PART III of the Indian Constitution. This doctrine is invoked in extremely exceptional circumstances, where such crime is totally new and un-imaginable in front of the Judiciary and it has caused a grievous injury to the plaintiff which to the maximum extent is irreparable or cannot be restitured. Therefore it can be said after analyzing the whole that Doctrine of Rarest of the Rare is partially a myth and partially a reality.


(Declaration: The Facts and Description in the aforesaid Article are best to the knowledge of the Author and does not intent to cause harm or benefit to the image of any Person, Judicial Organ or otherwise.)