The Onus To Declare Rarest Of The Rare: Subtle Failures Of Substantial Justice

Today, we are faced with two notions of justice. One finds manifestation in the words of S.A. Bobde C.J., where he says, "Justice can never be instant. Justice loses its character if it becomes revenge". The other notion of justice is "instant", and finds manifestation in the public approval of the encounter of rape accused in Telangana. Whereas there is no legal infirmity with the former, it is the latter notion that is troubling as it purportedly emanates from the underlying failure of the criminal courts to subject the guilty to the clutches of law in an expedient manner. In this piece, I undertake an examination of the two elements of the latter (and presently, more prevalent) notion of justice,

1. Successful declaration of guilt in court,

2. Expedience of such declaration.

The strength and efficacy of a criminal justice system rests on both these limbs. On one hand, it is important to declare the guilt of the guilty in a court of law, on the other hand, it is equally important to reach such declaration in a reasonably expedient manner. In my view, both these elements are co- terminus with each other and absence of any one element leads to the public approval of a flawed notion of justice. In the adversarial system that we follow in India, the question of guilt of an accused flows through levels of judicial scrutiny rising upto the level of the Supreme Court where, more often than not, it attains finality. The process is unbearably slow and often takes a decade to attain the aforestated finality. This pace might not be a fundamental issue in normal crimes, but it characterises itself as an inherent flaw in crimes that carry the potential to fall within the domain of "rarest of the rare" cases. Let us understand how!

The doctrine of rarest of the rare cases is not a rigid rule of blanket application. It is a fluidic concept born out of judicial propriety, resting upon the state of societal conscience. Unlike other judicial doctrines, the doctrine of rarest of the rare is not strictly confined within rigid judicial parameters and is largely driven by the prevailing state of criminality in the society. It primarily involves the translation of societal conscience into judicial conscience. Thus, the application of this doctrine is not uniform and grows with the advent of time. This inherently fluidic character of this doctrine, when coupled with procedural delays, leads to major legal infirmities in its practical application. Barring high profile cases, in the ordinary course of events, the guilt of an accused, generously speaking, takes over 8-10 years to reach the stage of finality before the Supreme Court. This time span is not just tiring for the litigants but also sweeps within its fold a significant change of notion of what qualifies as rarest of the rare. A society wherein crimes outgrow each other in terms of perversity and manner of commission, a decade is a long time span to tickle with our standards of conscience. Illustratively speaking, what would qualify as rarest of the rare before the sessions judge may become normal by the time such factual scenario reaches before the Apex court. Since the rarest of the rare doctrine is the only guiding light for the court to reach the decision of capital punishment, this time difference does not only change the standards of rarity, rather, it alters the very basis for deciding the question of sentencing. Resultantly, crimes continue to get normalised in our conscience, thereby escaping the desired purpose of sentencing. What is being dubbed as a technical aspect of criminal procedure, is, on the contrary, a case of substantial injustice in the garb of procedural delays.

This anomaly exposes two fundamental flaws in our criminal justice system - first, the consequences of the dynamic nature of the rarest of the rare doctrine and second, the underlying injustice behind the procedural delays. What, then, could be the way out?

The Code of Criminal Procedure does not prescribe any time limit for the trial of warrant cases and the same falls outside the purview of courts too, as observed in A.R. Antulay. Even the idea of fast track courts cannot remedy these anomalies because the idea of fast track courts is confined to trial courts and despite fast tracking of the trial court, a case may take years to reach the Apex court, where the ultimate test of rarity of an offence is to be conducted. What remains, therefore, is a mechanism wherein the fast tracking of the procedure in heinous offences is effected till the final word on the guilt of the accused has been uttered from the Apex court, so that the standards of sentencing remain intact and do not fall prey to the constantly developing standards of perversity of criminal acts in the society and lapse of time. This onus falls upon the court and the theme of "complete justice" armours the court to engage in this moulding of old principles to protect the idea of justice, as eloquently put by Vivian Bose J. as,

"...The underlying principles of justice have not changed but the complex pattern of life that is never static requires a fresher outlook and a timely and vigorous moulding of old principles to suit new conditions and ideas and ideals."

It is high time that the court understands that either the principle of rarest of the rare needs to go or the declaration of what amounts to rare needs to be made not only in the same factual scenario, but also in the same sociological scenario, before the scenario itself changes its standards due to lapse of time. A failure to do so would be nothing but a failure of substantive justice at the hands of procedure, thereby elevating the procedure to the status of the "mistress" of justice. An acid attack on a rape victim or setting ablaze a rape victim to prevent them from testifying in the court attacks the very foundation on which a criminal justice system stands and revolts with the conscience of any human, at least today. But I am compelled to ask -

Would it be equally revolting to our minds a decade from now when the guilt of these perpetrators will come for final determination before the Apex court?

Would such incidents be rare enough a decade from now when the court's mind would've been exposed to more of such incidents?

I doubt.

Views Are Personal Only.

(Author is a Delhi Based Lawyer)