‘Rarest of rare’ test must consider will of people: SC

Less than three months after a Supreme Court Bench held that sentencing has become "judge-centric", another Bench of the court on Thursday ruled that the "rarest of rare" test for sending a convict to the gallows has to depend on the "will of people" and "perception of the society".

The Bench of Justices K S Radhakrishnan and Dipak Misra said that even when the circumstances of a case warrant death penalty, a court will have to additionally apply the "rarest of rare" test. This test, the Supreme Court Bench added, will not be judge-centric but will "depend on the perception of the society, whether the society will approve the awarding of death sentence to certain types of crime or not".

The court underlined that since it had already in its November verdict held that the test for imposition of death penalty was not being applied correctly, it decided "to go a little further" in this judgement and explain what will be the test for handing out the capital punishment.

Citing the "crime and criminal test", it said that as a practice for awarding death sentence, the aggravating circumstances (crime test) have to be fully satisfactory whereas there should not be any mitigating circumstance (criminal test) in favour of a convict.

The Bench said this ascertainment was not enough and a final "rarest of rare cases test" was required.

"While applying this test, the court has to look into a variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes," it said.

"Courts award death sentence because the situation demands it; due to constitutional compulsion, reflected by the will of the people, and not judge-centric," it held.

The court's observations came while converting the capital punishment of two men, who were awarded the death sentence for killing a couple and their two sons in August 2000 over a property dispute in Punjab.

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