The FARCE of 'Rarest of Rare'

In India, we face discrimination at every stage of Life. Unfortunately, our death also attracts discrimination. Whenever, any mishap claimed lives of our citizens the state government gives compensation to show their compassion. In this compassion the life is being valued differently for different mishap. e.g. 'Amanat'/'Nirbhaya' the Delhi's Braveheart's life value is 35L INR whereas the deceased of Kumbhmela stampede’s value of life is 5L INR. There are more than lakhs of cases of rape and thousands of rape victims are murdered by the accused. The state government does not provide compensation to every victim. Does it not discrimination? There is no clear method for providing such compensation money to victim/deceased/survival. 

The Acid attack victim is breathing her fate everyday and asked the Supreme Court to grant euthanasia as she doesn’t want to live her life with her disfigured face. She couldn’t afford medical treatment as it costs more than 20L INR. It is the same state government who gives Amanat 20L INR doesn’t want to support this acid attack survivor. 

"Such extraordinary grounds alone constitutionally qualify as special reasons as leave no option to the court but to execute the offender if State and society are to survive. One stroke of murder hardly qualifies for this drastic requirement, however gruesome the killing or pathetic the situation, unless the inherent testimony oozing from that act is irresistible that the murderous appetite of the convict is too chronic and deadly that ordered life in a given locality or society or in prison itself would be gone if this man were now or later to be at large. If he is an irredeemable murderer, like a bloodthirsty tiger, be has to emit his terrestrial tenancy."

Afzal Guru is now no more! He was hanged to death. He has committed a crime which is 'Rarest of Rare'. This 'Rarest of Rare' is the biggest anomaly in Indian sentencing jurisprudence. The court must satisfy its conscience while granting death penalty to any convict that the crime which has been committed by the convict is 'Rarest of Rare' case. But, what is 'Rarest of Rare'? How do Indian Courts define the term 'Rarest of Rare'? These questiones haven't been answered well. It is the Bachan Singh case where the term 'Rarest of Rare' cropped in our sentencing jurisprudence.

The Supreme Court’s five-judge Constitution Bench judgment in Bachan Singh v State of Punjab (1980) is the source of contemporary death penalty jurisprudence in India. It limited the death penalty to the rarest of rare crimes, and laid down the principle that the courts must impose the death sentence on a convict only if the alternative sentence of life imprisonment is unquestionably foreclosed. For achieving these twin objectives, the court held that judges must consider the aggravating features of the crime, as well as the mitigating factors of the criminal. However, the application of its principles by the courts to various cases has been very uneven and inconsistent. 

The law demands clear and defined word. Otherwise, vague and ambiguous word will be proven fatal sometime. The word 'Rarest of Rare' has not been defined anywhere in India so, it creates confusion. This confusion leads conflicting judgments. Whenever the word has two or more than two meaning then the court has discretion to choose whatever meaning is suitable for the particular case. 

In the case of OMA Omprakash and Anr. V. State of Tamilnadu (Criminal Appeal No: 143 of 2007) Supreme court was shocked to know that the convict has been awarded death Penalty for the Dacoity and Murder. The Court was stunned after reading the reasoning given by session court to grant death penalty for such crime. The session court observed;

“In this case, the accused came from a state about 2000 k.m. from our state and they did not think that the victims were also human like them but they thought only about the well being of their family and their own life and committed the fear of death amongst the common public of our state by committing robbery and murder for about 11 years. Therefore, this court is of the opinion that the death sentence that would be imposed on them would create a fear amongst the criminals who commit such crime and further this case is a rarest of rare case that calls for the imposition of death sentence.”

Some of the Special Reasons given by Session Court reads as follow:

In this case, it has been decided by this court to impose the maximum sentence of death to be imposed on the accused No. 1 and 2, under Section 396 of the Indian Penal Code, under Section 354(3) of the Criminal Procedure Code, the special reasons for awarding such sentence to be given show that the case is a case of rarest of rare cases. Therefore, this court gives the following reasons:

B.) Before the enactment of Criminal Procedure Code, many years ago, civilization has come into existence. From the rule of Kingdom to the rule of people and the democracy and constitution came into existence in many countries. In these circumstances, the death sentence is prevailing in all the countries in different from and that sentence is imposed on such criminal who deserves for the same. We all know that more particularly in the court in like America, the sentence like ‘lynching’ has attained the legal form and given to the deserving criminals and in Arab countries the law provide for imposing sentence like ‘slashing’, ‘beheading’ taking the organ for organ like ‘eye for eye’, ‘tooth for tooth’. The above mentioned facts are the development of criminal jurisprudence. Therefore, this court is of the opinion that it is proper to impose death sentence to the accused in this case.

F.) The honorable Chief Justice of High Court of Madras, Justice A. P. Shah while delivering a lecture at Madurai said strict laws should be enacted as regard to Child abuse and the persons committing the crime should be punished accordingly. This advise was taken note of the honorable Justice Karpagavinayagm while delivering a judgment on rowdy panchayat system. He ordered that the government should enact suitable law to eliminate this menace. Taking this judgment into consideration and that there is a provision in Section 396 of the Indian Penal Code that the people involved in dacoity can be imposed with death sentence, the accused who have committed the murder without any pity deserve to be imposed with the death sentence. This court is also of the opinion that the imposition of death sentence under Section 396 of the Indian Penal Code is the only weapon in the hands of the judiciary under the prevailing law to help to eliminate the crime.

Above mentioned case provides great insights about how the Judges can misinterpret 'Rarest of Rare'. I am of the opinion that the word must be defined and provide the clear conditions/grounds/crimes in which the test of rarest of rare should apply. There are many cases where convicts committed similar crime gets different punishment. The death penalty is irreversible. This facts give us a reason why should we have an uniform definition for 'Rarest of Rare'.

Moral of the Story: Death doesn't eradicate DISCRIMINATION!!!