On Friday 13th September four men were sentenced to death for the gang-rape and murder of a young woman in Delhi. The case provoked international outrage and led to a robust national debate on the rights of women to be free from harassment and sexual violence in India. The judge justified the ultimate penalty by asserting that the case fell into the ‘rarest of rare’ category. But what does this mean in law, and indeed in practice?

Article 6 (1) of the International Covenant for Civil and Political Rights (1966) proclaimed the right to life, but it did not ban capital punishment. However, Article 6(2) restricted its scope in countries that still retained it to ‘the most serious crimes’. Thus began international efforts towards abolition and, short of that, progressive restriction of the death penalty. India, which has the second largest population in the world, has not yet ratified the covenant, but it has attempted to restrict the use of the death penalty in accordance with the ICCPR, so that the number of death sentences in relation to the size of the population has remained relatively small in recent years.

A challenge to the constitutionality of the death penalty in Bachan Singh v State of Punjab (1980) failed to convince the Supreme Court of India that the death penalty was an unreasonable punishment for murder, but the judgment emphasized that:

“The extreme penalty can be inflicted only in gravest cases of extreme culpability . . . life imprisonment is the rule and the death sentence an exception . . . A real and abiding concern for the dignity of human life postulates resistance to taking life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

The Court had in mind offences where ‘the murder has been committed after previous planning and involves extreme brutality’ or grave danger to the society at large. Since 1983 (Mithu v. State of Punjab), India has not had a mandatory death penalty and so judges must exercise discretion on which cases meet the ‘rarest of rare’ criterion. Given that this is not further defined and no clear guidelines have been developed, it is largely up to individual judges to interpret this phrase in deciding whether to impose a death sentence.

In Bachan Singh the Supreme Court listed a number of aggravating and mitigating circumstances that should be taken into account, emphasizing as aggravating factors the brutality or depravity of the murder, whether it was of a police officer, a public servant or a member of the armed forces while on duty, or a person assisting a law enforcement officer. Three years later another bench of the Supreme Court, in Machhhi Singh and Others v State of Punjab (1983), developed a typology of cases, giving examples where the ‘collective conscience’ of a community may be shocked, such as ‘when the murder was committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner’; ‘When a murder is committed for a motive which evinces total depravity and meanness’; ‘Anti-social or socially abhorrent murder’ including ‘dowry deaths or killings due to infatuation with another woman’; ‘multiple murders of members of a particular family’; and ‘where the victim is an innocent child, helpless woman, aged or infirm person, a public figure whose murder is committed other than for personal reasons’.

Given the range of circumstances listed and the different emphases of these two judgments, it is perhaps understandable that the courts have been inconsistent in drawing the dividing line between ordinary cases of murder and those that are regarded as the ‘rarest of rare’. In recent years the ‘rarest of rare’ concept’ has been applied to cases which have involved the murder of a child or children and premeditated multiple murders, and despite efforts to restrict its use, in recent years there have been various attempts to extend the legal scope of the death penalty to include acid attacks, plane hijackings and ‘honour killings’. And in light of the Dehli gang-rape case, India expanded its laws to include the death penalty for certain very serious cases of rape not resulting in death.

Such developments have been criticized by the South Asia Human Rights Documentation Centre  (SAHRDC) as an infringement of international standards and as a violation of the ‘rarest of rare’ doctrine, which SAHRDC regards as the final step before abolition.[1] However, although it may now be imposed for 11 types of offence, including various ‘terrorist offences’, for causing death through the use of illegal arms or ammunition, and for a second conviction of drug trafficking, the death penalty remains rarely imposed (in 2010 in just 0.5% of convictions) and the number of executions has declined dramatically. India keeps no official statistics on the number of executions, but the National Crime Records Bureau reports that there were 25 executions between 1995 and 2004. It is not known how many people were executed before this time but a report by the People’s Union for Democratic Rights claims that at least 1422 people were executed between 1954 and 1963 alone. After a period of eight years with no executions, in the last 12 months India has carried out two executions, in November 2012 and in February 2013, both for terrorist offences.

While India seems to be reluctant to execute those on death row, and amendments to the Code of Criminal Procedure and the landmark Supreme Court judgment in Bachan Singh have reduced the number of death sentences, capital sentencing remains ‘uneven and arbitrary’. As a recent Amnesty International report puts it: ‘India is stuck between joining the abolition trend and clinging to the misapprehension that the death penalty is an effective measure against crime and terrorism’.[2]

So, do these recent pronouncements suggest that the ‘rarest of rare’ requirement is being eroded? In the Delhi gang-rape case it is possible to recognise some of the features mentioned in the Machhhi Singh typology, for example where the ‘collective conscience’ of a community may be shocked or ‘when the murder was committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner’. But perhaps more important than the case law, was the public demand for the death penalty. There was considerable international media coverage following the defendants’ convictions in the days leading up to sentencing. Around the world uncompromising images of public demonstrations calling for the death penalty, mock hangings in the streets of India’s cities, and feminist groups calling for justice through ‘tough sentencing’, made clear that the public were hungry for revenge. In sentencing the defendants the judge made clear that he not only felt this case did meet the criteria for the ‘rarest of rare’ category, but that an example must be made of these men in an effort to address violence against women:

"There should be exemplary punishment in view of the unparallelled brutality with which the victim was gang raped and murdered, as the case falls under the rarest of rare category. All be given death… This is a time when serious crime against a woman has come to the fore and now its judiciary's responsibility to instil confidence among the women."

This and other high profile cases suggest that the ‘rarest of rare’ doctrine, though introduced to restrict the use of capital punishment, is now being presented to the courts by the prosecution as a normative prescription or sentencing guideline, whose effect is such that the judge has no option but to pass the death sentence in certain categories of cases. Indeed, it is possible to argue that in such high-profile and difficult cases the doctrine may serve to limit judicial discretion.  Prior to Friday’s judgment, this was most evident in terrorist cases, but given the apparent growing public appetite for capital punishment in India and pressure applied by the media, other crimes perceived by the public to be particularly heinous are likely to come under similar pressure. Although it is easy to sympathise with the desires of the victim’s family, and to share the frustration of the very many women in India who feel that the state has for too long dismissed their concerns about sexual violence, none of the rigorous empirical evidence supports the assertion that these sentences will deter others in India from rape or murder of women.

[1]  SAHRDC, Use of the Death Penalty in India, SAHRDC Submission to the United Nations Office on Drugs and Crime, 7 December 2004.
[2] Amnesty International (2010) ‘No executions for five years takes India closer to the death penalty moratorium’ AI Index: PRE01/148/2010.