Abstract

This article deals with two main aspects: the first deals with how rarest of the rare test, devised vis-à-vis the death penalty cases, was broken down into various factors and analysed whimsically. The second deals with what was the reasoning of the Court behind this whimsical engagement. Here the Court advanced the principles of ‘public opinion’ and ‘triple test’. The problem with these approaches is that it completely defeats the entire purpose of the rarest rare guideline. Bachan Singh restricted the death penalty to the rarest of rare cases. Bariyar further advised the judges to analyse a set of similar cases to be able to determine if the case being heard was rarest or rare. Gurvail Singh established certain crimes as particularly deserving of the death penalty. In Shankar Khade, the Court emphasised the need for evidence to guide death sentences. The addition or subtraction of various elements to the rarest of rare formulation ended up tempering with the very intent of Bachan Singh. The fact that in very few cases the original intent was preserved goes to show that the subjective interpretations of various judges go a long way in deciding the outcome of capital cases. At times the court added the triple test, society’s call for justice, public opinion or collective conscience to the mix; at other times it gave one priority over the other. There is no way of knowing which way the judicial coin will land. Heads one could live and tails one could die. The court believed that the rarest of rare guidelines would provide the necessary guidance for the exercise of judicial discretion in crimes of murder, thereby installing a guarantee against the death penalty from being arbitrary. However, the phenomenon of judicial discretion led to several innovations of their own, failing to keep arbitrariness at bay. Undoubtedly, the courts engaged in cherry-picking of facts apropos of crime and criminal.

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