The doctrine of ‘Rarest of the rare’ case.

 TITLE Bachan Singh Vs. State Of Punjab
COURT Supreme Court of India
JUDGES/CORAM Justice Y. Chandrachud, Justice A. Gupta, Justice N. Untwalia, Justice P.N. Bhagwati and Justice R. Sarkaria


Capital Punishment, also known as death penalty, is an issue of exceeding concern. In the present case, SC declared certain restrictions on capital punishment and set out the ‘rarest of rare’ doctrine. This case is a landmark judgment given by a 5 judges bench. The Apex Court noted herein that  “a real and abiding concern for the dignity of human life postulates resistance to taking a life through laws’ instrumentality. That ought not to be done except in rarest of rare cases where the alternative opinion is unquestionably foreclosed.”


The facts of the case are as follows: Bachan Singh, appellant in Criminal Appeal No. 273 of 1979, was tried and convicted and sentenced to death under Section 302, Indian Penal Code for the murders of Desa Singh, Durga Bai and Veeran Bai by the Sessions Judge. The High Court confirmed his death sentence and dismissed his appeal. Bachan Singh then appealed to the SC by special leave, which came up for hearing before a Bench of this Court (consisting of Sarkaria and Kailasam, JJ.). In appeal, a question was raised whether the facts found by the courts would be “special reasons” for awarding death sentence as required under Section 354(3) of the CrPC, 1973.


The main issues in the case were:

  1. Whether or not death penalty provided for the offence of murder in Section 302, Indian Penal Code was unconstitutional?
    1. Whether Article 19 is at all applicable for judging the validity of the impugned provision in Section 302 of IPC?
    2. Whether the impugned limb of the provision of 302 of IPC contravenes Article 21 of the Constitution?
  2. If the answer to the above mentioned question be in the negative, whether the sentencing procedure provided in Section 354(3) of the CrPC, 1973 (Act 2 of 1974) is unconstitutional on the ground that it invests the Court with unguided and untrammeled discretion and allows death sentence to be arbitrarily imposed on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code with death or, in the alternative, with imprisonment for life?
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Summary Of Court Decision And Judgement

            It was finally held that the impugned provision of Section 302 penal code violates neither the letter nor the ethos of Art. 19. As to the matter of 2nd point Art.21 clearly brings out the implication that the founding fathers recognized the rights of the state to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law. There are several other indications, also, in the Constitution which show that the Constitution makers were fully cognizant of the existence of death penalty for murder and certain other offences in the IPC.

The constitutional validity of Section 354(3) was assailed on the ground that a sentence of death is the extreme penalty of law and it is but fair that when a Court awards that sentence in a case where the alternative sentence of imprisonment for life is also available, it should give special reasons in support of the sentence. Accordingly, Sub-section (3) of Section 354 of the current Code provides: When the conviction is for an offence punishable with death or, in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and, in the case of sentence of death, the special reasons for such sentence. Now comes them minority view (consisting of P.N.Bhagwati) who says that Section 302 of IPC in so far as it provides for imposition of death penalty as an alternative to life sentence is Ultra Virus and Void as being violative of Articles 14 and 21 of the Constitution. There are no legislative guidelines as to when life should be extinguished by imposition of a death sentence. He then further said that “I would strike down Section 302 IPC as unconstitutional and void”.

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Court with the majority of 4:1 rejected the challenge to the constitutionality of Section 302 of the Penal Code in so far as it provides for the death sentence as also the challenge to the constitutionality of Section 354(3) of the CrPC, 1973.


In this case, the Indian judiciary stated that death penalty must be restricted to the “rarest of rare” cases. The Supreme Court favors minimization of the use of capital punishment to penalize criminals. However, many legislations contradicted this view as number of crimes for which capital punishment is awarded increased.

Constitution clearly states in Article 21 that no person shall be deprived of Right to life unless done following due process of law but Capital punishment denies due process of law. Its imposition is always irrevocable. It irreversibly deprives an individual of the opportunity to benefit from new evidence or new laws that might warrant the reversal of a conviction, or the setting aside of a death sentence.

The latter part of the dictum of the ‘rarest of rare doctrine states – ‘that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.’ Bachan Singh (supra) suggested selection of death punishment as the penalty of last resort when, alternative punishment of life imprisonment will be futile and serves no purpose. Death punishment, as will be discussed in detail a little later, qualitatively stands on a very different footing from other types of punishments. It is unique in its total irrevocability.

Imposing of death sentence is one thing that always gets more attention to be discussed, including from the view of constitutional validity in each countries. National discussion about the death penalty has resurfaced from time to time. The Supreme Court addressed the question of constitutionality of the death penalty for the first time in Jagmohan Singh v State of Uttar Pradesh (AIR 1973 SC 947). The judgment stated that “The death sentence does not extinguish all the freedoms guaranteed under Article 19 (1) and it was also held that it was not violative of art 14 of the Constitution on the ground that unguarded and uncontrolled discretion is given to judges to impose either capital punishment or imprisonment for life. Thus the death penalty became the exception rather than the rule”.

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Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal human beings than any other form of punishment. There is some evidence in this regard (though no convincing statistical evidence) that this is in fact so. However, this effect does not operate universally or uniformly. There are many offenders for whom it has proved to be limited and often negligible.

In England, death penalty was retained for high treason in the Silverman Bill of 1956. Even at present, for that offence, death penalty is a valid sanction in England. In the aftermath of assassination of Prime Minister Bandernaike in 1959, Ceylon hurriedly reintroduced capital punishment for murder. In the U.S.S. R. (Russia), as many as 18 offences are punishable with death. In Russia, at present, there are several offences committed in peacetime which are punishable with death under the RSFSR Criminal Code. In California another study from the Rand Co-operation, suggests that keeping habitual criminals locked up would do more to reduce crime than any rehabilitation efforts. Despite treatment or preventive measures, habitual criminals commonly go back to crime after they are released from prison, the study showed. In addition, the study found that deterrence to crime was in direct proportion to the relative certainty of going to jail, after being caught.