Report No. 262

(iii) The emergence of constitutional due-process standards

1.3.10 Post-1967, India has witnessed an expansion of the interpretation of Article 21 of the Constitution of India, reading into the right to dignity and substantive and due process. Most famously, Maneka Gandhi v. Union of India, (1978) 1 SCC 248 held that the procedure prescribed by law has to be "fair, just and reasonable, not fanciful, oppressive or arbitrary." Maneka Gandhi v. UOI, (1978) 1 SCC 248, at para 48.

1.3.11 Subsequently, in Bachan Singh, the Court observed that Section 354(3) of the CrPC, 1973, is part of the due process framework on the death penalty. In this regard, the Court held the following:

There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. Nonetheless, it cannot be overemphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3).

Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and Figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequenc.- a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter.

It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guide-lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception.

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. Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209. (Emphasis supplied)

1.3.12 The 'rarest of rare' standard has at its core the conception of the death penalty as a sentence that is unique in its absolute denunciation of life. As part of its concerns for human life and human dignity, and its recognition of the complete irrevocability of this punishment, the Court devised one of the most demanding and compelling standards in the law of crimes. The emergence of the 'rarest of rare' dictum when the "alternative option [is] unquestionably foreclosed" Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209 was very much the beginning of constitutional regulation of death penalty in India.

1.3.13 However, it is important to consider the NCRB data on the number of death sentences awarded annually. On average, NCRB records that 129 persons are sentenced to death row every year, or roughly one person every third day.

In Khade, the Supreme Court, took note of these figures and stated that this number was "rather high" Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, at para 14.- "[T]he number of death sentences awarded is rather high, making it unclear whether death penalty is really being awarded only in the rarest of rare cases" and appeared to suggest that the death penalty is being applied much more widely than was envisaged by Bachan Singh. In fact, as subsequent pages suggest, the Supreme Court itself has come to doubt the possibility of a principled and consistent implementation of the 'rarest of rare' test.