In its recent judgment in Mulla v State of UP, the Supreme Court has continued with the trend of emphasising the extremely limited scope of the rarest of rare doctrine first formulated in Bachan Singh.

This blog has noted Justice Sinha’s contribution to the death penalty debate, where he repeatedly emphasised the fundamental precondition in Bachan Singh—that rarest of rare case will be one where ‘the alternative option [of life imprisonment] is unquestionably foreclosed.’ We have also previously looked at his landmark judgment in Santosh Bariyar in some detail. Justice Sathasivam’s judgment in Mulla seems to be informed by a similar spirit. A few extracts from the judgment follow:

38. The following propositions emerge from Bachan Singh case
(i) of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the `offender’ also require to be taken into consideration along with the circumstances of the `crime’.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

39. In order to apply these guidelines inter alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

43. This Court in Bachhan Singh’s case (supra) has held that:
“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.”

44. Therefore, it is open for the court to grant a death penalty in an extremely narrow set of cases, which is signified by the phrase `rarest of the rare’. This rarest of the rare test relates to “special reasons” under Section 354(3). Importantly, as the Court held, this route is open to the Court only when there is no other punishment which may be alternatively given. This results in the death penalty being an exception in sentencing, especially in the case where some other punishment can suffice. It was in this context that the Court had noted:

“The expression “special reasons” in the context of this provision, obviously means “exceptional reasons” founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal”

54. Another factor which unfortunately has been left out in much judicial decision-making in sentencing is the socio-economic factors leading to crime. We at no stage suggest that economic depravity justify moral depravity, but we certainly recognize that in the real world, such factors may lead a person to crime. The 48th report of the Law Commission also reflected this concern. Therefore, we believe, socio-economic factors might not dilute guilt, but they may amount to mitigating circumstances. Socio-economic factors lead us to another related mitigating factor, i.e. the ability of the guilty to reform. It may not be misplaced to note that a criminal who commits crimes due to his economic backwardness is most likely to reform. This court on many previous occasions has held that this ability to reform amount to a mitigating factor in cases of death penalty.