Beyond Inconsistent Application: Inherent Gaps in the ‘Rarest of Rare’ Framework


In Matters of Judgment, an opinion study among sixty former Supreme Court judges on the death penalty and the criminal justice system, former judges strongly acknowledged the role of personal backgrounds while exercising judicial discretion in the context of capital cases. It was a remarkable acknowledgment on sentencing in capital cases in the context of arbitrariness that has plagued the rarest of rare framework. A few of these judges attributed this to the inconsistent understanding of the rarest of rare doctrine, as laid down in Bachan Singh. While the inconsistent understanding and (mis)application of the rarest of rare doctrine has received significant scrutiny[1], the doctrine’s inherent insufficiency has not received the attention it deserves. In this piece, we argue that the formulation of the rarest of rare framework as contained in Bachan Singh itself gives room for excessive unguided discretion and it is the doctrine’s inherent gaps that has allowed much of the inconsistent application over the last four decades. In essence, while the inconsistent application of the rarest of rare framework is a very significant concern, it is just as important to look at the prior concerns with the framework itself (before moving to its application) as imagined in Bachan Singh.

Considering the persisting confusion over the content of the rarest of rare framework, we specifically inquired about the factors influencing judicial discretion in death penalty sentencing in India. As demonstrated in the report, 31 former judges acknowledged that the discretion under the rarest of rare framework is influenced by the personal background of judges. They cited class, social background, and religious beliefs as factors influencing judicial discretion while deciding between the death penalty and life imprisonment. A former judge illustrated, taking into account his personal background, that since he belonged to a farming family, he would consider the motive of agricultural land dispute leading to murder as a mitigating circumstance. Another judge while discussing the impact of personal prejudices on decision making affirmed, “It is not about honesty of the judges which determines sentences, but their backgrounds.” Several judges also remarked how a particular former Supreme Court judge, owing to religious affiliation, never confirmed death sentences.[2] These findings also confirm the concern raised by the Supreme Court in Swamy Shraddhananda v. State of Karnataka regarding the influence of judges’ personal predilections while applying the rarest of rare framework. In light of unequivocal acknowledgment of this nature, it is important to examine the nature and degree of discretion the doctrine itself offers to the judges.

A close examination of the rarest of rare framework will reveal that it provides excessive unguided discretion in multiple ways and provides ample space for individual predilection to play a prominent role during sentencing.[3]Bachan Singh in its pursuit of avoiding a rigid and formulaic approach laid down that the death penalty can be imposed only in gravest cases of extreme culpability, taking into account the aggravating and mitigating circumstances. It laid down the rarest of rare test which requires judges to first identify and then balance aggravating and mitigating factors. It also provided an indicative list of relevant aggravating and mitigating circumstances[4] which could be used by judges. It further added that mitigating and aggravating circumstances should be determined based on well recognised principles- “crystallised by judicial decisions illustrating what were regarded as mitigating or aggravating circumstances in those cases”.

While it granted the room for adding mitigating and aggravating circumstances, it did not lay down any norms for identifying those circumstances and neither did it provide any guidance on identifying the weight that needs to be attached to different sentencing factors. As aggravating circumstances are already present before the court in the form of circumstances of the offence, it is the circumstances of the accused like age, socio-economic background, mental health considerations, childhood abuse located within their life history which are to be introduced newly at the sentencing stage. Another aspect of the doctrine that deserves attention is the fact that BachanSinghdoes not sufficiently locate this process of investigating and presenting these mitigating factors (mainly circumstances of the ‘criminal but also possibly about the offence) within the framework of a ‘fair trial’. As a result, capital cases are routinely decided with barely any mitigating factors being presented on behalf of the accused. Another critical lapse in Bachan Singh is that it does not prescribe the standard of proof that needs to be met while considering aggravating and mitigating factors. For example, the capital sentencing framework in Pennsylvania (provided by the legislature) requires that aggravating factors be proved ‘beyond a reasonable doubt’ while mitigating factors are subject to the preponderance of probabilities.

Failure to guide identification of factors has also sometimes led to the same factor being treated as mitigating in one case, and aggravating in another. For instancethe Supreme Court has treated the motive of infidelity and jealousy in different capital cases differently. On one hand, in Amruta v. State of Maharashtra, the Supreme Court cited sexual jealousy as a mitigating factor to commute the death sentence. On the other hand, in Bheru Singh s/o Kalyan Singh v. State of Maharashtra, the Supreme Court upheld the death sentence of a man who committed murder of his wife and five children, fearing his wife’s infidelity. The Bench observed it as an aggravating factor and noted that it was a “most heinous, cold-blooded and gruesome murder” that “sends a chill down our spine and shocks our judicial conscience.” This example perfectly captures the difficulty being discussed here. Would the above example be an instance on inconsistent application of the doctrine or does it point more towards the lack of guidance inherent in the doctrine?

In addition, the framework does not stipulate the weight that can be attached to specific aggravating or mitigating circumstance. This allows judges to assess the role of offence and offender characteristics in each case according to their personal accord, with no legislative or judicial guidance. For instance, despite Bachan Singh saying that extreme young age is a compelling mitigating circumstance, there is no clarity regarding how it will be weighed against other vague, but compelling aggravating circumstances like extreme brutality. This has led to inconsistent treatment of age as a mitigating factor across judgments. In Amrutlal Someshwar Joshi v. State of Maharashtra, for example, the Supreme Court dismissed young age as a mitigating factor, despite there being evidence that the accused was less than 20 years of age at the time of commission of the crime. On the other hand, in Bantu@ NareshGiri v. State of Madhya Pradesh, the Supreme Court, taking into account the young age of around 22 years of the accused ruled that there is no justifiable need to impose the death penalty.

 In our study, when we asked judges about the effectiveness of the rarest of rare doctrine, 13 judges (of the 22 who responded to this question) felt that the doctrine is subjective to such an extent that it has no real standard and provides unguided discretion to judges while adjudicating capital cases. The doctrine’s insufficiency, as argued by one judge, leads to the discretion being exercised in an unstructured, unfettered, and vague manner. Another judge said that while applying rarest of rare test “different judges react differently” even if the same considerations are presented to them. It was so terrifying for this judge that he felt it was the strongest reason for abolishing the death penalty. It is notable here that despite the overwhelming acknowledgment of unguided discretion and the role of personal background in sentencing, only one judge saw arbitrariness within the death penalty sentencing as a ground for its abolition. Notably, many judges did not see this as a problem and felt that sentencing would always be judge-centric, as the process cannot be reduced to a mathematical formula to decide outcomes.[5]

While effectiveness of the rarest of rare doctrine has been doubted on the ground of inconsistent application before[6], the findings in Matters of Judgment on the manner in which discretion is exercised must push us in the direction of examining the extra work that the doctrine of rarest of rare must do. At first, a mechanism ought to be put in place for courts to assess the circumstances of offender for a fair balancing of mitigating and aggravating circumstances. A more systemic reform can start with studying the sentencing frameworks in other common law countries[7] which guide judicial discretion. Unless we add to the rarest of rare framework to plug some of the doctrinal gaps, inconsistent application will necessarily be a fait accompli with the rarest of rare framework.

[1]Law Commission of India, The Death Penalty, (Law Commission of India, No. 262, 2015) at 142. See also, Swamy Shraddhananda v. State of Karnataka (2008) 13 SCC 767, Santosh Kumar Bariyar v. State of Maharashtra (2009) 6 SCC 498, Sangeet v. State of Haryana (2013) 2 SCC 452 and Amnesty International, India: The Death Penalty in India: A Lethal lottery, 2008.

[2]Matters of Judgment: An opinion study on the death penalty and the criminal justice system,74-82 (Centre on the Death Penalty, National Law University Delhi, 2017) [hereinafter ‘Matters of Judgment’]

[3] Surya Deva, Death Penalty in the ‘Rarest of Rare’ Cases: A Critique of Judicial Choice-makingin Confronting Capital Punishment in Asia: Human Rights, Politics, and Public Opinion, Oxford Scholarship Online, Access at:

[4]The judgment records it as a list suggested by Dr. Chitaley in Bachan Singh v. State of Punjab,(1980) 2 SCC 684, 749.

[5]‘Matters of Judgment’, 80

[6]Law Commission of India, The Death Penalty, (Law Commission of India, No. 262, 2015), Amnesty International, India: The Death Penalty in India: A Lethal lottery, 2008.

[7]See United States Federal Sentencing Guidelines formulated under the Sentencing Reform Act, 1984; Part 4 (Sentencing) of the Coroners and Justice Act, 2009 (United Kingdom).

Preeti Dash & Rahul Raman