Jurists perceive 'rarest of rare' doctrine subjectively

Study details troubles faced by SC judges over death penalty

Jurists perceive the doctrine of "rarest of rare" to determine death penalty subjectively and it raises "serious questions" about such sentencing being a judge-centric phenomenon, a study involving 60 former Supreme Court judges has claimed.

The study - Matters of Judgement - by the New Delhi-based Centre on the Death Penalty of the National Law University (NLU) claims that there has been "significant judicial confusion" surrounding this doctrine, which was formulated by the Supreme Court to ensure that death penalty is given judiciously.

"It is explicit that courts at all levels have struggled to implement any level of consistency with the rarest of rare doctrine... As a result of this confusion, very serious questions have been raised about death penalty sentencing in India being a judge-centric phenomenon," it said.

The analysis was done by the NLU after taking responses from 60 former apex court judges who had dealt with death penalty cases.

'No standard'

According to the study, 13 of the 22 former judges who provided detailed responses felt that the rarest of rare doctrine was "subjective to such an extent that it has no real standard at all". The report said that a former Chief Justice of India admitted that the formulation was "unclear"and that he "did not understand what it really meant".

A section of judges felt that the rarest of rare doctrine was the "best possible formulation" to guide the judges when deciding between life imprisonment and death sentence. They felt that it also provided sufficient room to judges while deciding on the imposition of death sentence by allowing them to consider particular facts and circumstances in each case.

However, another section felt this doctrine excluded important considerations and it was "disproportionately offender-centric" and it "did not focus sufficiently" on the victim or the impact on the victim's family.

"The understanding of 'rarest of rare' among former judges was often at variance with the original meaning assigned to it. The formulation as initially understood, collapsed easily into certain categories of crime or was conflated with aggravating circumstances such as the brutality of offences," it said.

The study also noted that the impact of media coverage on sentencing outcomes "seems to be worrisome", as a majority of judges said that it affects at least some of them at all levels within the judicial hierarchy.