Hindustan Times (Amritsar)

Delhi rape verdict: Not going by the rule book

Contrary to popular belief, the brutality of the crime is not the only relevant considerat­ion for the death penalty

- Anup Surendrana­th is director, Centre on the Death Penalty, at National Law University. The views expressed are personal ANUP SURENDRANA­TH

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 is often understood to mean that the crime was “exceptiona­lly brutal” and that the accused deserve the death penalty by the virtue of its 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 so 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.

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.” This means: 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 balance other aggravatin­g and mitigating factors.

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 but there is little evidence of them following the mandate to give a ‘liberal and expansive constructi­on’ to mitigating factors.

 ?? HT FILE PHOTO ?? Graffiti at a demonstrat­ion in New Delhi against alleged inaction by the government regarding the gang rape of a 23yearold student in the Capital
HT FILE PHOTO Graffiti at a demonstrat­ion in New Delhi against alleged inaction by the government regarding the gang rape of a 23yearold student in the Capital
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