December 16 gangrape: ‘Rarest of rare’ does not just mean ‘exceptionally brutal’
The discussion on the desirability of the death penalty in any given case then flows from such a flawed understanding - where those seeking the death penalty seek to characterise the crime as exceptionally brutal and therefore deserving the death penalty.
The ‘rarest of the rare’ has a specific legal connotation in the context of the death penalty but has acquired a life and meaning of its own in public discussions. As a result, ‘rarest of rare’ is a misapplied term. It has come to take on a literal meaning that describes the crime in question. It is often understood to mean and suggest that the crime was “exceptionally brutal” and that the accused deserve the death penalty by the virtue of its exceptional brutality.
The discussion on the desirability of the death penalty in any given case then flows from such a flawed understanding - where those seeking the death penalty seek to characterise the crime as exceptionally brutal and therefore deserving the death penalty. As a result, the demand for the death penalty gets limited to a single consideration of brutality. While we may morally believe that the only relevant consideration to impose the death penalty should be the brutality of the crime, it is not the constitutional position.
Examining the origins of the phrase ‘rarest of rare’ will show the folly of adopting the ‘exceptionally brutal’ meaning for the phrase ‘rarest of rare’. The phrase found its way into India’s death penalty framework through the majority judgment in Bachan Singh (1980) that upheld the constitutional validity of capital punishment.
Four judges (out of five) were of the view that after balancing aggravating and mitigating circumstances, “….. a real and abiding concern for the dignity of human life postulates resistance to taking a 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.”
It does not require a very close reading of the majority judgment to realise that the phrase ‘rarest of rare’ is meant to convey the idea that the death sentence must be imposed in ‘very few’ cases rather than saying that death sentences should be handed out in ‘exceptionally brutal’ cases.
The task of judges, according to the judgment, is not to determine the cases that are ‘exceptionally brutal’. Their task is a lot more complex. How should judges then go about determining the ‘very few’ cases in which the death sentence will be imposed?
The majority opinion in Bachan Singh identifies a list of aggravating circumstances (relating to the crime) and mitigating circumstances (relating to the background and circumstances of the accused person) that must be ‘balanced’ to determine whether a death sentence is to be imposed.
The brutality of the crime is just one of the aggravating factors and judges have to consider and balance a whole range of other aggravating and mitigating factors. The judgment in Bachan Singh is explicitly holds that while balancing aggravating and mitigating factors, judges must give a ‘liberal and expansive construction’ to mitigating factors while considering the death penalty.
The judgment of the Supreme Court confirming death for the four accused in the December 16 gang rape case falls rather short in this regard. It is evident that the judges have attributed a lot of weight to the brutality of the crime (as they rightly should) but there is little evidence of them following the mandate of to give a ‘liberal and expansive construction’ to mitigating factors.
As a three-judge bench, they were bound by the prescription of the five-judge bench in Bachan Singh. A moral discussion on the appropriate course of action in this case is very different from a constitutional one. Phrases, procedures and approaches laid down in earlier decisions of higher bench strength have very specific meanings and implications.
Anup Surendranath is director, Centre on the Death Penalty, at National Law University
The views expressed are personal