Delhi gangrape: What is a 'rarest of rare' crime inviting the death penalty?

The four convicts in the Delhi gangrape case have been handed the death sentence for the murder and gangrape of a 23-year-old medical student on 16 December 2012. In addition to the death sentence, the four convicts were also handed maximum punishment for every section of the IPC that they were convicted under.

“There should be exemplary punishment in view of the unparallelled brutality with which the victim was gangraped and murdered, as the case falls under the rarest of rare category, all be given death,” the court said while reading out a portion of the order.

So what is the ‘rarest of rare’ category that this case fell into? While it is clear that the gruesomeness of the crime made it an exceptional one, the ‘rarest of the rare’ is a legal category which is used when deciding on the appropriate use of capital punishment. As an established rule, death penalty can only be awarded in the “rarest of the rare” cases. But since there is no statutory definition of what rarest of rare means, the debate on each death sentence punishment rages on.

A provision was introduced in 1973, Section 354(3) of the Criminal Procedure Code (CrPC), which stipulated that a judgment shall state ‘’the reasons for the sentence awarded and, in the case of sentence of death, the special reasons for such sentence’’. It was while interpreting those ‘‘special reasons’’ required for invoking the discretion of death penalty that the Supreme Court formulated the ‘‘rarest of rare’’ doctrine in 1980 in the Bachan Singh case.

According to the National Legal Research Desk, merely the death of the victim or murder charges do not qualify a case as rarest of the rare. “The court takes into consideration both aggravating and mitigating circumstances, a line of thought that has developed over the years in various judicial pronouncements,” says their website.

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In 2008, the Supreme Court had ruled on what exactly constituted a rarest of rare case. Capital punishment could be awarded when a “murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community,” the court said, according to a report in the Telegraph. If the motive betrays depravity and meanness, or if a backward or minority community member is killed not for personal reasons but to arouse social wrath, the accused should get death, it added.

Other crimes which technically fall into the rarest of rare cases are bride burnings and dowry deaths, a child victim, the assassination of a public figure for political reasons, or killing a defenseless person because of old age or infirmity.

But, as this article in Times of India points out, there is some ambiguity that remains about what constitutes a rarest of rare case. The subjectivity of each judge remains a factor, as does the reactions around the case - whether the public outrage to the Delhi gangrape was a factor in the verdict is a question which arises in this context. In the Santosh Bariyar case on 2009, the Bariyar verdict pointed to ‘’the danger of capital sentencing becoming a spectacle in the media’’.

It can also change according to the facts and circumstances of the case, brutality of the crime, conduct of the offender, previous history of his involvement in crime, chances of reforming and integrating him into the society, and so on.

“‘The question of death penalty is not free from the subjective element and the confirmation of death sentence or its commutation by this court depends a good deal on the personal predilection of the judges constituting the bench’,” said Justice Aftab Alam of the Supreme Court in 2008 in the Swamy Shraddananda case.