Connecting the dots in ‘Rarest of rare’: Is judicial discretion the perfection of reason? Tracking judicial discretion in death penalty cases in India

Abstract

In order to restrict the imposition of the death penalty to an extremely narrow band of cases, the Supreme Court of India laid down the principle of ‘rarest of rare’ guiding but not fettering the sentencing discretion of judges. Despite the guidelines, the decision remains purely discretionary with its accompanying arbitrariness leading to unpredictability, and disparity in sentencing, which places a tremendous burden of responsibility on the sentencing judge. It is necessary to think of an alternative to the judge-centric discretionary death penalty, such as Sentencing Commission recommended the death penalty, that will help bring transparency and predictability to the entire process of decision making. Discretion delivers discrimination. Therefore, the discretionary death penalty is discriminatory. Whether by a judge or a jury, the exercise of sentencing discretion is arbitrary and capricious, particularly if the discretion is untrammeled and unchannelized. The ‘rarest of rare’ principle does not differentiate between murder simpliciter and murder contemporaneous such as rape-murder. Each judge interprets the meaning of ‘rarest of rare’ in his way. The current system is not working. A guideline-driven sentence is far better than a judge-centric one. The US Congress has constituted the US Sentencing Commission, a statutory judicial body entrusted with formulating a mechanism for sentencing to remove disparity and element of surprise in the sentencing outcome. It lays down structured guidelines with narrow judicial discretion in the matter of sentencing a convict. Sentencing Commission, though not a perfect mechanism- no mechanism can be perfect given the very nature of capital punishment- seems to overcome many of the drawbacks and shortcomings of the existing judge-centric system raising questions on perfect reasoning.