Can Law Measure Evil? A Philosophical Analysis of the “Rarest of Rare” Doctrine and Capital Punishment in India

One of the most debated issues in the Philosophy of Law and matters of criminal justice is the concept of ‘Capital Punishment’. Some philosophers as well as legal thinkers argue in favour of it when it comes to extremely brutal crimes, while others argue against it on moral and humanitarian grounds. In India, death penalty is constitutionally valid, but the Supreme Court has limited its use through the “rarest of the rare” doctrine, established in cases like: Jagmohan Singh versus State of Uttar Pradesh (1973), Rajendra Prasad versus State of Uttar Pradesh (1979), as well as Bachan Singh v. State of Punjab (1980). According to this doctrine, only in exceptional cases where the crime is so serious that even life imprisonment becomes insufficient, does the court consider giving death penalty to the accused. The reason behind introducing this doctrine was to prevent the arbitrary use of capital punishment as well as to ensure judicial restraint. But this doctrine is not as simple as it might sound – it creates an important philosophical as well as legal problem. Before passing the order of death penalty, the court first needs to analyse which crimes are ‘ordinary’ and which ones are exceptionally ‘monstrous’. In other words, the judiciary is forced to determine degrees of evil. This might give rise to a very serious philosophical crisis as it becomes highly problematic as to how one should even measure moral horror through objective standards. Different judges may look at cases of brutality, and moral shock differently. Therefore, the law attempts to preserve objectivity while simultaneously depending upon subjective moral judgments. This problem becomes even more evident when we do a parallel study of the 2012 Delhi gang- rape and murder case of Jyoti Singh Pandey, aka, “the Nirbhaya Case”, and the very recent R.G. Kar Medical case. Now, both the cases generated great national outrage, emotional shock, and a demand for capital punishment. However, the legal outcomes were not similar in any sense. The former resulted in capital punishment, while the latter, in life imprisonment without parole, because the court declared that it did not fall under the category of the “rarest of rare” (Times of India, Jan 21, 2025). This study examines the philosophical problem that revolves around the doctrine of the “rarest of the rare”, and that it forces courts to create a hierarchy of evil, making the judges the moral evaluators of horror, rather than purely legal interpreters. This study does not proceed from the assumption that capital punishment in inherently unjust or unconstitutional. But it actually accepts that there may exist exceptionally grave offences where it is very much reasonable, morally as well as legally defensible to give a death sentence. The focus of this article is, thus, not the abolition of capital punishment, but the philosophical and the legal difficulties associated in determining which crimes truly deserve it.