Written by Aadya Sachan

This article deals with the principle of the rarest of rare cases vis-à-vis mercy petition in death sentences under Section 472 BNSS.

Introduction

The death penalty, also known as capital punishment, has been a fixture of India’s criminal justice system for centuries, dating back to the earliest legal codes and traditions of the subcontinent. India’s long and complex history with the death penalty stretches back centuries and is woven into the very fabric of the subcontinent’s social and legal traditions. Capital punishment is one of the oldest and most controversial forms of punishment. Over time, the emergence of modern legal frameworks has brought with them a renewed focus on human rights.

The Indian Constitution guarantees all persons the right to life under Article 21, which states that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” This shift marked a significant turning point in the discourse surrounding capital punishment, raising critical questions about its ethical justification and relevance in contemporary society.

The post-constitutional debates that arose, called for the abolition of the death penalty in favor of the right to life and personal liberty. However, the Supreme Court has, through multiple judgements, upheld the constitutionality of the death penalty, citing it to be well within the ambit of Article 21 as it is not absolute in nature. The words ‘except procedure established by law’ empower the state to restrict and curtail the right to life under certain exceptional circumstances.  Hence, while the right to life is a paramount human right, it can be restricted through lawful means. The apex court, has, through a string of judgements, been trying to streamline the entire death penalty jurisprudence.  

Judgment related to the rarest of rare cases

In Jagmohan Singh v. State of Uttar Pradesh, 1973, the Supreme Court upheld punishment of the death penalty and concluded that it did not violate Article 21 of the Constitution entitled the right to life. This judgement was followed by the case of Rajendra Prasad v. State of Uttar Pradesh, 1979, which set boundaries on adjudging the death sentence, taking into consideration certain extra extreme occasions.

Finally came the case of Bachhan Singh v. State of Punjab, 1980, in which the doctrine of rarest of rare was propounded, however, the scope of application of this doctrine was left undefined.  Later in the case of Machhi Singh v. State of Punjab, 1983, certain categories were outlined by the Supreme court to determine whether a case falls within the ambit of rarest of rare.

These categories are as follows:

• Manner of commission of murder: The gravity and the grotesque nature of the murder shall be taken into consideration. The offence should be brutal enough that it shocks the conscience of society.

• Motive: When the murder is committed for a motive which evinces total depravity.

• Magnitude of the crime: When the proportion of the crime is enormous, i.e. mass murders.
• Victim: When the crime is committed against an innocent child, a senior citizen, or a person with disability, this highlights the depraved nature of the offender’s crime.

The apex court has also laid down a few guiding principles that are to be adhered to for the application of rarest of rare doctrine. Some of these principles are as follows:

• Death penalty is the harshest punishment that can be awarded; therefore, it should only be awarded in the most extreme cases.

• Before awarding the death penalty, both, the mitigating and the aggravating circumstances shall be taken into consideration. A ‘balance sheet’ of the same must be prepared and in doing so the mitigating circumstances will have full weightage.

• The circumstances of the offender, his living conditions, his upbringing and other social aspects should be taken into consideration along with the circumstances of the crime.

• Life imprisonment is the rule and death penalty is the exception.

In the landmark judgement of Mukesh v. State for NCT of Delhi, 2017, the Court affirmed that the death penalty is to be awarded to the accused, considering the heinous and gnarly nature of the crime, and the subsequent attack on the public conscience. Such judgments highlight the tendency of the common good to address crimes that shock society’s collective conscience.

Mercy Petition

The rarest of rare doctrine acts as a safeguard against the death penalty as it works to narrow down the ambit of the courts discretion by laying down definite criteria for awarding the death penalty. Another one of these safeguards is the Mercy Petition. A mercy petition is a formal appeal submitted by individuals facing death sentences or imprisonment, requesting clemency from the President or Governor, depending on the jurisdiction. 

Clemency is a practice prevalent in many countries, India being one of them. The mercy petition process is rooted in Articles 72 and 161 of the Constitution of India, which empower the President and the Governors of the states, respectively, to grant pardons, reprieves, respites, or remissions of punishment. The rationale behind this provision is that the offender should have an opportunity to appeal to a different authority that can look at them from a fresh perspective.

The framework of clemency acts as an important judicial safety net, as seen in a major 2012 case when a group of 14 High Court and Supreme Court judges formally wrote to India’s President, pointing out capital punishment miscarriages in the 1990s which led to 15 wrongful death penalty sentences, including two people being actually executed. A basic goal of this system of mercy petitions is keeping public trust in the integrity and impartiality of criminal justice administration.

The Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the Indian Penal Code, continues to prescribe the capital punishment but brought in more organized guidelines for its application. The Bharatiya Nyaya Suraksha Sanhita (BNSS), with section 472, lays down the procedural aspect of mercy petitions in death sentence cases.

Section 472 of the Bharatiya Nyaya Suraksha Sanhita (BNSS), provides a structure for capital punishment appeals and clemency hearings:

1. Compulsory Judicial Oversight: The law provides for an automatic appeal process under which all death sentences are subject to review by a High Court Division Bench, irrespective of whether the convicted person files a formal appeal. The sessions court can award the death penalty, but only with the ascent of the High Court. This adds an extra layer of judicial oversight of all death penalty pronouncements as a procedural check.

• Time-Limited Deliberative Process: Sec.472 places time limits on executive clemency decisions, requiring that all petitions for mercy be determinatively considered within six months of their formal receipt by either the President or the Governor. The provision aims to rectify the convention of undue delay on death row.

• Multifaceted Evaluative Criteria: The president and the Governor, both are statutorily required to review the humanistic and rehabilitative considerations of the case, while deliberating mercy pleas. The aspects to be considered are as follows:

• Thorough assessment of the petitioner’s mental health and physical fitness.
  • Examination of the duration and conditions of death row incarceration.
  • Determination of potential for rehabilitation and likelihood of reintegration of the offender into society.
  • Examination of how extended execution delays could affect the convict’s psychological condition.
  • Review of any post-conviction evidentiary changes or altered circumstances that should be taken into consideration.

• Accountability Through Disclosure: The law imposes accountability on the clemency process through the documentation of reasons for both granted and rejected mercy petitions. These executive decisions are still open to judicial review, thus creating a crucial check against arbitrary decision-making.

• Procedural Due Process Rights: The legislation specifically ensures the right of the condemned individual to legal representation at all stages of the mercy petition process, and to meaningful access to this ultimate recourse mechanism.

• Post-Denial Temporal Buffer: After rejection of clemency, the law imposes a statutory two-week gap prior to the possibility of proceeding with execution, giving the convicted individual time to seek judicial review of the executive decision. The interregnum is a last barrier against final punishment without proper review.

Together, these provisions shift the mercy petition process from an exclusive discretionary executive activity to a formal, rights-protective process with material and procedural safeguards.

Analysis and Conclusion

Despite the judicial framework laid down by landmark judgements such as the Bachan Singh case and the Machhi Singh case, the exercise of determining which cases qualify to be placed in the “rarest of rare” category continues to be marred with significant interpretive uncertainty and inconsistency. The Supreme Court itself recognized this disquieting judicial inconsistency in Santosh Kumar v. State of Maharashtra 2009, in which the bench specifically acknowledged that factually similar cases often led to different sentencing outcomes based on the composition of the judiciary hearing the case.

This judicial inconsistency was again highlighted in the court’s observations in Chhannu Lal Verma v. State of Chhattisgarh, 2018. Justice Joseph carefully outlined a pervasive methodological difference in the application of the doctrine by the Court, distinguishing between two opposite approaches to interpretation which had developed over decades. Some benches largely relied on crime-specific considerations—highlighting the brutality and social consequences of the crime itself—essentially following what Justice Joseph described as a “crime-centric approach.” Others adopted a more balanced “balanced approach” that accorded great importance to both the nature of the crime and the offender’s individual circumstances, background, and potential for rehabilitation.

This bifurcation has created a sentencing environment in which the constitutional promise of equal protection of the law is vulnerable to defeat, as similarly situated defendants can receive vastly different treatment based not on legally pertinent differences but rather on the philosophical inclinations of the specific bench trying their case. The inconsistency raises questions about whether the “rarest of rare” standard—despite its noble intention to ensure just usage of capital punishment—has achieved its purpose of eliminating arbitrariness from death penalty jurisprudence or has instead substituted one form of judicial discretion for another, equally subjective methodology.

In addition, the lack of measurable criteria or uniformly applied standards for assessing the “rarest of rare” standard results in capital sentencing remaining subject to personal judicial impressions and subjective judgments instead of objective, uniformly applied criteria. This continued subjectivity detracts from the very principle that capital punishment can be imposed only according to evident, consistent, and predictable legal criteria. Ultimately, the goal must be a criminal justice system that balances the need for deterrence with the principles of proportionality, fairness, and human dignity.

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This article is written by Aadya S.