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  • Manuraj Shunmugasundaram

Re-Affirming Rarest of Rare


In a significant development, the Supreme Court of India has instituted a suo moto writ petition to look into the awarding of sentences in death penalty cases and to issue guidelines therein. These developments, steered by the recent decisions by the Bench of the Supreme Court led by Justice U.U. Lalit, will usher a new wave of jurisprudence around death penalty sentencing thereby reinterpreting the “rarest of rare” doctrine, first enunciated in the Bachan Singh v. Union of India (hereinafter, ”Bachan Singh case”) judgment. By doing so, there has been a revival of judicial dicta that capital punishment need not be handed down in a mechanical manner but only after considering and assessing all possibilities of reformation. This development singularly has the potential to reframe the death penalty jurisprudence for the future.

Bachan Singh Test

In the Bachan Singh case, the Supreme Court articulated the rarest of rare doctrine to bring home the message that “imprisonment is the rule and death sentence an exception”. By doing so, the Supreme Court, in unequivocal terms, justified the doctrine by stating that:

“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.”

Judgments of the Supreme Court following the Bachan Singh case understood the rarest of the rare doctrine to mean the creation of a balance sheet consisting of aggravating and mitigating factors in connection with the sentencing of the convict.  Specifically, in Machhi Singh v. State of Punjab when the sentencing court is faced with the question of death penalty, the Supreme Court suggested that the following questions be considered:

“(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?”

Deficiencies in Sentencing

In spite of such specific judicial guidance on the issue of death penalty sentencing, studies have shown that when a group of former judges were asked what they considered as a rarest of rare case, they gave personalised and subjective articulations of the doctrine. A report by National Law University Delhi’s Project 39A (earlier known as the “Centre on the Death Penalty”) found that there is no judicial uniformity or consistency in the application of the rarest of rare test. Other studies by Project 39A have revealed serious socio-economic biases in the award of death sentence.

Considering such systemic deficiency in death sentencing, over the last few years, there have been sincere efforts to consider and assess mitigating factors. One of the earliest such instances was seen in State v. Bharat Singh 2014,  wherein the Delhi High Court directed the Government to assign a probation officer to submit a report on two aspects: the probability of the accused to commit a crime in the future and the probability of reformation and rehabilitation.

Having considered the report of the probation officer, in a subsequent order, the Delhi High Court declined to confirm death penalty and held as thus:  

“9. In light of the above reports, the Court is persuaded to conclude that there exists a probability that the Appellant can be reformed and rehabilitated. The Appellant has been in custody only since April 2011. In the course of his serving imprisonment for life, there would be sufficient opportunity to evaluate the positive effects of the correctional measures. His continued incarceration would ensure that he would not commit criminal acts as would constitute a continuous threat to the society.

Consequently, the Court declines to confirm the death sentence recommended to be awarded to the Appellant by the trial Court and instead sentences the Appellant to imprisonment for life for the offence under Section 302 of IPC.”

In 2018, in a significant development in jurisprudence, the Supreme Court went as far as holding that the convict can even lead necessary evidence on the issues of mitigation and reformation as part of the sentencing arguments. The Supreme Court in the case of Rajendra Pralhadrao Wasnik v. State of Maharashtra observed as follows:

“45. The law laid down by various decisions of this Court clearly and unequivocally mandates that the probability (not possibility or improbability or impossibility) that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the courts before awarding the death sentence. This is one of the mandates of the “special reasons” requirement of Section 354(3) of the Cr.P.C. and ought not to be taken lightly since it involves snuffing out the life of a person. To effectuate this mandate, it is the obligation on the prosecution to prove to the court, through evidence, that the probability is that the convict cannot be reformed or rehabilitated. This can be achieved by bringing on record, inter alia, material about his conduct in jail, his conduct outside jail if he has been on bail for some time, medical evidence about his mental make-up, contact with his family and so on. Similarly, the convict can produce evidence on these issues as well.” (emphasis supplied)

Following this, the Supreme Court of India has repeatedly enquired into the sentencing exercise in appeals challenging the confirmation of death penalty by various High Courts. In the case of Mofil Khan and Another v. State of Jharkhand 2021 (hereinafter, “Mofil Khan case”), the court observed as follows:

“8. One of the mitigating circumstances is the probability of the accused being reformed and rehabilitated. The State is under a duty to procure evidence to establish that there is no possibility of reformation and rehabilitation of the accused. Death sentence ought not to be imposed, save in the rarest of the rare cases when the alternative option of a lesser punishment is unquestionably foreclosed (See: Bachan Singh v. State of Punjab ). To satisfy that the sentencing aim of reformation is unachievable, rendering life imprisonment completely futile, the Court will have to highlight clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. This analysis can only be done with rigour when the Court focuses on the circumstances relating to the criminal, along with other circumstances.”

This must be viewed as a welcome development in the evolution of death penalty jurisprudence and a much-needed course correction in terms of applying and upholding the principles of Bachan Singh case and Machi Singh case. In the case of Manoj & Ors v. State of Madhya Pradesh the Supreme Court has issued directions to the State to place before the court all “report(s) of all the probation officer(s)” relating to the accused and reports “about their conduct and nature of the work done by them” while lodged in the prison. Most importantly, the order also directs that a trained Psychiatrist and a local Professor of Psychology conduct a psychiatric and psychological evaluation of the convict. Such directions build on the foundational principles of rarest of the rare case with a strong emphasis on ensuring that possibility of reformation is assessed in a scientific and detailed manner.

As such, building on Bachan Singh case, a new wave of judicial thinking is emerging with the Supreme Court showing a strong inclination to elicit relevant materials around mitigating circumstances. By doing so, the Supreme Court has placed the onus now on the High Courts and Sessions Courts to fairly assess the possibility of reformation of the convict. These observations, read along with the dicta of the Bachan Singh case, must now be construed as guiding principles to the sentencing courts to reset and re-affirm the rarest of rare principle as we await the bench consisting of Justices U.U. Lalit, S. Ravindra Bhat and P.S. Narasimha lay down detailed guidelines in this regard.


This article has been authored by Mr. Manuraj Shunmugasundaram, Partner at Ganesan and Manuraj Legal (LLP). This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.


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