Bachan Singh and the Rarest of Rare

In one line

Bachan Singh upheld the death penalty and, in the same judgment, made it almost impossible to impose: life imprisonment is the rule, death the exception, and death only in the rarest of rare cases when the alternative option is unquestionably foreclosed.

In the wording a student can write in an exam: in Bachan Singh v. State of Punjab, (1980) 2 SCC 684, a Constitution Bench of five judges rejected by four to one the challenge to the constitutionality of section 302 of the Indian Penal Code and section 354(3) of the Code of Criminal Procedure 1973, holding that they are reasonable, in the general public interest, and offend neither Article 19 nor Articles 21 and 14. On sentencing it held that for persons convicted of murder life imprisonment is the rule and death sentence an exception, and that a sentence of death ought not to be passed save in the rarest of rare cases when the alternative option is unquestionably foreclosed. Bhagwati J dissented.

Why the reference was made

Bachan Singh had been convicted of the murders of Desa Singh, Durga Bai and Veeran Bai. He had a previous conviction for murder and had committed these murders after serving out the life sentence in the earlier case. The High Court confirmed the death sentence.

His appeal came before Sarkaria and Kailasam JJ. The only question was whether the facts found were "special reasons" within section 354(3). Kailasam J was of opinion that the majority view in Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646, was contrary to the Constitution Bench decision in Jagmohan Singh v. State of Uttar Pradesh, (1973) 1 SCC 20, and the matter went to five judges.

What was decided on the constitutionality of capital punishment

The challenge was rejected, and the death penalty for murder is constitutionally valid. Section 302 of the Penal Code and section 354(3) of the Code of Criminal Procedure are reasonable and in the general public interest and offend neither Article 19 nor Articles 21 and 14.

Note what that leaves. The Court did not hold that the death penalty is a good thing, or that it deters. It held that Parliament may retain it and that a court may impose it under a procedure that satisfies Articles 14 and 21.

The rarest of rare formulation

The words must be reproduced exactly, because half their force is in the second half of the sentence, which candidates routinely drop.

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.