Indian laws do not possess a supportive view of the death penalty and neither they deter it absolutely. A few instances like Section 121[Waging War against the State], Section 302[Murder], Section 364A [Kidnapping for Ransom] etc. and other provisions of the Indian Penal Code 1860, The Commission of Sati (Prevention) Act 1987, NDPS Act 1985, Prevention of Terrorism Act 2002 are some of the laws that prescribe with the capital punishment to the offender.
As the laid down by the Apex court or the Honorable Supreme Court the doctrine of rarest of rare is that the capital punishment should be given in exceptional to exceptional cases finding out the effect the crime manner and the seriousness through which the crime has been committed. Capital punishment is given by interpreting this doctrine that is the Rarest of the Rare doctrine plays a decisive role in the sentencing of the accused, whether the accused is entitled to survive or whether his life is to be taken away is completely dependent on the interpretation of this doctrine.
The Supreme Court in one of the landmark cases named “Bachan Singh vs State of Punjab” laid down the principle, “Life imprisonment is the rule and death sentence is an exception.” Supreme Court, in due course of its judgment in the Bachan Singh case propounded the doctrine of the rarest of rare case.
In another case of Maneka Gandhi vs Union of India the court ruled that death penalty can only be awarded in special cases It constitutes an exceptional punishment which will be imposed only with special reason and must be properly conferred by the High Court.
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As many as more than 100 countries have completely abolished death penalty where as many as 30 countries have abolished the practice of no execution of any person been carried out in the last 10 years whereas in India there has been debate whether the capital punishment should be abolished in India or not which has been going on for the last 5 to 7 years yet the capital punishment in India is carried out in rarest of rare cases just like the present case where the capital punishment was carried out. Indian laws do not hold a stable opinion of capital punishment and neither do they dissuade completely and has been restricted to rarest of rare cases yet there are various laws which prescribe death as punishment despite the offences not being serious in nature the scope of the doctrine is that phrase was left undefined. The Ratio Decidendi of this doctrine is that the death sentence is constitutional if it is prescribed as an alternative for the offence of murder and if the normal sentence prescribed by law for murder is imprisonment for life this means that death penalty can only be imposed on “rarest of rare cases” where an alternative option is excluded.
The doctrine has been criticized on the basis that in many cases where the intention of the offender has been beyond even the criminal mind should be given capital punishment ae only given life imprisonment as an alternate to the death penalty as the same is decided by the judges.
It has also been criticized that hypothesis which is tested here is that after the doctrine of rarest of rate there is no substantive change in the award of death penalty. In other words, the doctrine which attempted to reduce the rate of capital punishments has, in fact failed or sometimes led its increase. The judges have now got a doctrine which they can employ in any case whenever they want to justify infliction of death penalty.
Since the law does not provide any proper definition of what rarest of rare has been laid out the situation is criticized each time the court awards death penalty to the offenders. There have been cases where the offender has committed rape as well murder and has been granted death penalty where there has been many same cases but instead of giving death penalty they have been given life imprisonment the total thing that sums up is that the use of the doctrine is at the discretion of the judges of the court and once a death penalty is given it cannot be reversed base on this particular doctrine which has lead to a difficult scenario to find the difference in these punishment that is it crime or criminal or the judge.
On the other side it is impossible to remove this doctrine from use in a country like India as it will put the country in danger situation as the doctrine which is supposed to be for society centric has become the discretion for the judge. In order to practice the doctrine of rarest to rare due care should be take and cases should be identified where the doctrine applies with proper reasonableness and proficiency and with due care keeping in mind the circumstances of the cases and the criminal intentions.
This article is authored by Siddhartha Gupta, student of LLB at Mumbai University.
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