Nirbhaya Case: What Does ‘Rarest of the Rare’ Actually Mean?

The death penalty may be given in a case that fits the criteria of the ‘rarest of the rare’.

The gruesome gang rape of a 23-year-old woman on 16 December 2012 – or the Nirbhaya case – stirred India's collective conscience. But 11 years on, the battle for women's safety in the country is far from won.

As we remember Nirbhaya's struggle – and that of any woman who has been a victim of gender-based violence, The Quint is reposting articles and videos from our coverage of the case over the years.

The Nirbhaya case constitutes a crime that fits into the category of the ‘rarest of the rare’ cases because it violated the collective conscience. The death penalty, as an exceptional punishment, follows from the judgment that the case fit the criteria of the ‘rarest of the rare’.

Ideally, an exception should be unknown until it occurs: it is exceptional because it is not documented under the rule. Conversely, once an exception has been codified through the law, it loses its exceptional character. Hence, ideally, there can be no pre-existing category of the ‘rarest of the rare’.

However, the fact that such a category exists proves otherwise.

Judges already know what these ‘exceptions’ are going to be because they understand exceptions for a category like ‘murder’. The ‘rarest of the rare’ proves to be an empty, floating category, which seems to stand at once inside and outside the law, due to its ability to accommodate exceptionality. In the Nirbhaya judgment, the Supreme Court said that the ‘rarest of the rare’ case is one in which “the crime is committed… may result in intense and extreme indignation of the community and shock the collective conscience of the society”.

Rarest of the Rare: An Ever-Evolving Category

The category of the ‘rarest of the rare’ is always evolving. It is the evaluation of certain cases that makes them fit into the category of the ‘rarest of the rare’, and not the nature of the crimes as such. In such cases, the legal judgment says that the judicial power is obligated to the collective to repair the moral fabric of society which the crime has torn.

The social anthropologist Max Gluckman observed that in primitive societies, conflict does not lead to the breakdown of society but rather acts as its glue.

He viewed rebellions against authority as a sign of persistent faith in the authority. In some sense, public pressure can be viewed as forcing the authority to reform itself.

In modern societies, public pressure is exerted through the idea of ‘collective conscience’. It is the crime that brought the society together in the form of protests, and impressed upon the judiciary (without featuring in the judgment as evidence such as newspaper reports or social media outrage) that this crime is unique – not just because of the way it was committed, but the impact it had on society. In the Nirbhaya case, the interest of ‘collective conscience’ became an admissible legal tool against which the severity of crimes could be judged by the judiciary.

The ‘rarest of the rare’ case lacks a definition per se, and can only be described by a collective sense of violation felt in the society.

The sociologist Emile Durkheim says that there are certain rules prescribed upon everyone’s consciousness, and hence it is possible for a collective to simultaneously feel outraged.

Where Evaluation of a Crime Goes Beyond the Act of the Crime Itself

We see this dilemma arise in the Nirbhaya judgment as well. Being a case of murder, should the accused have been punished with life imprisonment or death penalty? What form of punishment would be more befitting of the crime committed? This is where the evaluation of the crime goes beyond the act of crime itself: it assesses the rarity of the crime based on its impact on the collective consciousness.

The judiciary does not intend merely to provide just punishment, but also restore the balance of society and maintain this illusory collective conscience.

It thus emerges that both crime and collective conscience are mutually constitutive, and that the collective conscience has criminal roots. It was in the larger interest of society and not in the name of providing just punishment for a crime, that the Nirbhaya judgment supported the death penalty for the accused.

The ‘Fiction’ of a Collective Conscience

In the Nirbhaya judgment, we find the judiciary breaking its own law: despite saying that the death penalty must only be an exception, it creates the category of ‘rarest of the rare’. This acts as a zone of exceptionality in which cases can enter in order to attain the death penalty as the judgement. By giving the death penalty for an exceptional case which fits the ‘rarest of the rare’ category, the judgement actually sets a precedent by making death penalty a rule for exceptional cases.

What emerges is that collective conscience is a fiction that allows us to conceive of the idea of society.

There can be no pre-existing law for a fictive society. Hence, the Nirbhaya judgment not only invokes but creates the collective conscience through the crime whose rarity was itself created through the collective conscience. Punishment then is not an eye for an eye, but a mechanism for maintaining the illusion of public and social order, by making the collective conscience feel satisfied that the judiciary has attempted to repair its violation.

(Aarushi Punia is a PhD research scholar in English Literature, Department of Humanities and Social Sciences, IIT Delhi. This is a personal blog and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)