Law Audience Journal (e-ISSN: 2581-6705)

Volume 5 & Issue 5

Death Penalty: The “Rarest of the rare” doctrine

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Authored By: Ummey Safia Begum, Faculty of Law, Cotton University, Guwahati, Assam

Abstract

Death penalty as a mode of punishment has been in existence in India since a very long time. With time the people have realised the brutality of the punishment and also because there is no returning back once the person is being executed. Various efforts have been made by challenging the death penalty as violating certain fundamental rights and being unconstitutional. Supreme court in various judgements had different views regarding the same and finally in the case of Bachan Singh v State of Punjab it made it clear that such brutal punishments shall be given only in “rarest of the rare cases” and not otherwise and following certain other guidelines that are been pronounced in the case of Macchi Singh. The death penalty has also been in practice in various other countries like the USA, Russia , however, countries like the U.K and others have abolished completely in a trend towards success that by retaining the death penalty is not a requirement for effectively responding to insurgency, terror or violent crime. Various International instruments have been made to eradicate the penalty from all the countries of the world like the U.N and International Non-governmental organisations like Amnesty International by pressurizing all the countries including India. However, India chose to retain the same by looking into different perspectives of an Indian society and as the punishment is given by careful means by going through various steps as per the law.

 

 

Keywords: Death Penalty, brutality, international scenario, rarest of the rare, unconstitutional.

 

 

Methodology

As a secondary tool for study, books of eminent authors, articles in research journals, newspaper reports have been scanned and analysed. Several online databases and internet search engines have been used to keep the study updated.

 

 

Introduction

Post-independence, the “Rarest of the Rare” doctrine was employed by the Indian Judiciary to determine whether to impose capital punishment on accused found guilty. The term was coined for the first time in India in the case of Bachan Singh v State of Punjab[1]. It stated that Death Penalty is not to be awarded except in the ‘rarest of rare cases’ when the alternative option is unquestionably foreclosed. No consistent stance on the death penalty has been made by the Indian laws till today, i.e. it is neither abolished entirely, nor is it clearly ruled out where to necessarily pronounce death penalties. It is evident from provisions of Indian Penal Code such as Section 121, Section 302, and Section 364A that the death penalty is still applicable in exceptionally rare cases.[2]

In rarest of the rare cases the judiciary awards capital punishment not as an option but mandatorily. These are the cases which are considered so serious and heinous that any other punishment is not as justified as the death penalty. Forms of punishment have been defined in Indian Penal Code (IPC), 1872 under Section 53. The first form of punishment under the Section is the death penalty. Under IPC Death penalty as an offence has been prescribed for various offences including murder as defined under Section 300.[3]

Under Section 300 it prescribes two forms of punishment i.e. Death Penalty and life imprisonment wherein life imprisonment to be followed as a rule and death penalty as only in exceptional cases to be given. Honourable Supreme Court of India defined this category of exceptional cases as rarest of rare (hereinafter, ‘the Apex Court’). Thus, under IPC the death penalty for the offence of murder can be granted only in these exceptional cases and not otherwise.

India being a welfare state has fulfilled its duty of protecting the people by providing various fundamental rights under the Constitution to them. Right to life under Article 21 is one of the most important rights incorporated under the Constitution. The Article provides that nobody can be deprived of the right to life and therefore no one has the right to take away this right of any person and whosoever  does the act is considered unjustified and will be punished by the law. However, the exception to the right to life enshrined in the Article itself provides that the person can be deprived of his right to life only by the procedure established by the law. Offences under criminal law, like offences against the state, against the woman and some other offences which are against the society are punishable by death. Death penalty has been in existence not only in India but other countries of the world as well, as a necessary means of punishment to be used as a last resort. Various pronouncements have been made by the Supreme Court of India regarding the death penalty. There are also cases where they have challenged it as unconstitutional violating Article 14 and 21 of the Constitution respectively. Despite various arguments, India chose to retain the system and to apply in exceptional cases and that has been termed now as rarest of the rare. However, there are also countries that are against this system and have abolished it completely as they argue that it violates human rights e.g. the U.K. The UN and other International Non Governmental Organisations are also making efforts to eradicate this form of punishment completely from all systems of punishment as a whole.

 

Death Penalty in the International scenario

In USA

Death Penalty as a model of punishment has been in existence in the USA (United States of America) for a very long time. However, since the late 1990s and early 2000s, use of the death penalty in America has steadily declined, with a reducing number of jurisdictions responsible for a growing portion of executions. The punishment remains legal in 27 states and for the federal government as well. Majority of US adults say they’re in favour of it for convicted murderers; the number of jurisdictions that actually use it to punish the “worst of the worst”.[4]

 

The Supreme Court of US has ruled that the death penalty does not violate the ban on cruel and unusual punishment of Eighth Amendment’s of the American Constitution, but the Amendment shaped certain procedural aspects regarding the use of the death penalty and how it must be carried out. The Eighth Amendment applies to the states, as well as the federal government because of the Fourteenth Amendment’s Due Process Clause.

 

While analysing Eighth Amendment, it requires the courts to consider the evolving standards of decency to determine whether a particular punishment constitutes a cruel or unusual punishment. The courts, should look for objective factors to show a change in community standards while considering evolving standards of decency, and to make independent evaluations by the court about the statute in question whether it is reasonable or not.

 

In the case of Furman v. Georgia[5], the Court held that the existing death penalty laws were unconstitutional because they constituted cruel and unusual punishment in violation of the Eighth Amendment and thus invalidated the law. According to the court there was a disproportionate application of the death penalty law, specifically discriminating against impoverished and minority communities. The Court also reasoned that the existing laws terminated life in exchange for marginal contributions to society.

 

In Kennedy v. Louisiana,[6]  after two decades, the Supreme Court extended its ruling in Coker, holding that for cases of child rape in which the victim lives the death penalty is categorically unavailable. Only six states in the country permitted the execution as a penalty for child rape, and the reason why Supreme Court found that national consensus rendered the death penalty disproportionate in these cases.

 

In Baze v. Rees,[7] the Supreme Court held the use of lethal injection to not constitute a cruel and unusual punishment. The Supreme Court also applied an “objectively intolerable” case test to determine if the method of execution violates the Eighth Amendment which bans cruel and unusual punishment. Similarly, the legality of lethal injection was upheld in Glossip v. Gross[8].

In Hall v. Florida,[9] the Supreme Court held that to decide whether someone is intellectually/ developmentally disabled for the purpose of being eligible for the death penalty the brightline IQ threshold may not hold.

 

In U.K

In the year 2015 marked the 50th anniversary of the enactment of the Murder (Abolition of the Death Penalty) Act 1965, which suspended and effectively abolished the Death Penalty for capital murder in England, Scotland and Whales.[10]

During an era of marked social liberalisation and enlightened thinking, by the abolishment of capital punishment, [11] it perhaps represented the most important policy change in the U.K. The legacy left by them in India continues to impact directly on the United Kingdom’s relations with other countries who still deploy judicially sanctioned homicide as part of their legal systems. During World War I, 306 British and Commonwealth soldiers were executed for offences under the Army Act 1881 and the Indian Army Act 1911,[12] such as cowardice and desertion.[13]. There were about 20,000 soldiers approximately who were sentenced to death.[14].The executions were controversial at the time, and the controversy grew during the 20th century, when developments in psychiatric medicine revealed that many of the men executed were suffering from mental shock as a result of their terrible experiences on the battlefields.[15]  

The 20th century saw the imposition of a number of restrictions on the use of the Death Penalty. Many new laws have been added as well as various recommendations have also been received. According to Section 103 of the Children Act 1908 no child under the age of 16 could be executed as the minimum age for execution was raised to 18, the legally recognised age of the commencement of adulthood, by s 52 of the Children and Young Persons Act 1933. A 17-year-old Charles Dobel was the last person under the age of 18 to be executed along with another William Gower, aged 18 on 2nd January 1889, for murder. Then the Infanticide Act of 1922 made the killing of a baby by its mother no longer a capital crime and the most significant restriction on the use of capital punishment in the 20th century was the Homicide Act 1957, which created the new offence of capital murder. It provided that all other murders were to be non-capital murder and were to carry a mandatory sentence of life imprisonment.

To reduce murder to manslaughter the Act also introduced a new partial defence of diminished responsibility. Many years later the Judicial Committee of the Privy Council in the case of Reyes v The Queen[16]  articulated the inappropriateness of this practice, and the non-equivalence of mercy and proportionate sentencing. In the United Kingdom a 19-year-old William Holden in 1973 was the last person sentenced to death for the capital murder of a British soldier during the Troubles. Finally a bill passed was passed and the Murder (Abolition of the Death Penalty) Act 1965 came into effect on 9 November 1965. The 1965 Act’s long title is:

‘An Act to abolish capital punishment in the case of persons convicted in Great Britain of murder or convicted of murder or a corresponding offence by court martial and, in connection therewith, to make further provision for the punishment of persons so convicted.’

Section 1(1) of the Act provides (as amended):

No person shall suffer death for murder, and a person convicted of murder shall… be sentenced to imprisonment for life.

Between 1965 and 1994 there were 13 attempts in Parliament to reintroduce the Death Penalty.

 

The most comprehensive international instrument to which the United Kingdom is a party which operates to prevent reintroduction of the Death Penalty is Protocol No. 13 to the European Convention on Human Rights (ECHR).

 

In Russia

Since August 2nd 1996 Capital punishment is not used and no death sentences or executions have been carried out as a legal penalty in Russia due to a moratorium. Capital punishment was relatively rare in pre-Tsarist medieval Russia and was even banned in many, if not most, principalities. Restrictions were put on what crimes warranted execution by the Law of Yaroslavl (c. 1017) and the law was amended later in much of the country to completely ban capital punishment.

On March 12, 1917 following the February Revolution and the establishment of the Russian Republic the death penalty was officially outlawed however, on May 12, 1917, the Death Penalty became applicable to soldiers at the front. After the October Revolution, the Soviet government confirmed the abolition almost immediately, but restored it soon after. On 4 September 1918, most notably, Socialist-Revolutionary Fanny Kaplan was executed for her attempt to assassinate Lenin six days earlier; hangings and shootings were very extensively employed by the Bolsheviks as part of their Red Terror.[17]

According to Article 20 of the Russian Constitution, everyone has the right to life, and that “until its abolition, the death penalty may only be passed for the most serious crimes against human life.” Additionally, all such sentences require jury trial.

The current Penal Code[18] permits the Death Penalty for five crimes:

 

  • murder, with certain aggravating circumstances (article 105.2)
  • attempted murder of a judge (article 295)
  • attempted murder of a police officer (article 317)
  • attempted murder of a state official (article 277)
  • genocide (section 357)

 

The Supreme Court of  the self-proclaimed Donetsk People’s Republic on 9th June 2022, convicted Aiden Aslin, Shaun Pinner (both British), and Brahim Saadoun (Moroccan) of mercenarism and sentenced them to the death penalty. The Russian media and the court claimed that one of the convicts Aslin had confessed to “having undergone drilling which aimed at carrying out terrorist acts” and that Pinner is recognised as a terrorist for involving in wars of Iraq and Syria.[19]

 

Working of the Doctrine in Indian context

No straight jacket formula is available for the application of the doctrine of ‘rarest of rarerThe trial of a criminal case consists of two main essentials i.e., the nature and the gravity of the crime. Based on the two essentials the magnitude of the punishment can be carved out. The Judicature of India is under a commitment to find some kind of harmony among aggravating and mitigating conditions as well as cry of the general public on the other. The judiciary also makes sure that the grounds should be remarkably sound so that there is no option left other than death penalty. The Apex Court in recent times has maintained capital punishment granted a subsequent to calling it as “rarest of rare” case after the Nirbhaya case and outrageous discipline is conceded for guaranteeing equity. Rarest of rare regulation is the measuring stick for giving the death penalty in India.

The ‘rarest of rare doctrine’ can be divided into aggravating and mitigating circumstances. The Judge in case of aggravating conditions, may on his will force capital punishment while for mitigating conditions, the Bench will not grant capital punishment under rarest of rare cases.

In the case of Machhi Singh v. State of Punjab[20] a three judge bench of the Supreme Court laid down certain guidelines to decide cases of rarest of rare. The court put up certain questions to be followed, may be asked and answered as a test to determine the ‘rarest of the rare’ case in which death sentence can be inflicted –

Is there something uncommon about the crime which renders a sentence of imprisonment for life inadequate and calls for a death sentence?

Are the circumstances of the crime such that there is no alternative but to impose a death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

 

The court observed that the extreme penalty of death should be inflicted only in gravest cases of extreme culpability. The circumstances of the offender need be taken into consideration along with the circumstances of the crime before opting for the Death Penalty. Life imprisonment is the rule and death sentence is an exception. Death penalty must be imposed only when life imprisonment appears to be an altogether inadequate punishment due regard to the circumstances of the case. A balance of aggravating and mitigating circumstances to be drawn up giving full weightage, to mitigating circumstances and just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

The court further categorically stated that “in rarest of the rare cases when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict Death Penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded.”

 

In the following circumstances, the court regards “shock to conscience” may occur –

When the murder is committed, in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner in order to arouse, intense and extreme indignation of the community,

When there is a motive behind the murder committed which evinces total depravity and meanness; e.g. cold blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland When murder of a member of a Scheduled Caste or minority community etc., committed due to reasons like in cases of ‘bride burning ‘ or ‘dowry deaths’ or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

When the crime committed is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

When the murder is committed against an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murder is in a dominating position, or public figure generally loved and respected by the community.

 

The doctrine of “rarest of rare” is basically confined to two aspects and the Death Penalty can be imposed when both the aspects are satisfied. Firstly, the case must clearly fall within the ambit of “rarest of rare” and secondly, when the alternative option is unquestionably foreclosed. Bacchan Singh[21] suggested selection of death punishment as the penalty of last resort when alternative punishment of life imprisonment will be futile and serves no purpose and therefore, a balance-sheet of aggravating and mitigating circumstances has to be drawn up.

 

Restrictions and safeguards regarding the use of the Death Penalty in the International Law

 

The United Nations and several international bodies have set up a number of standards aimed at regulating and restricting the use of the death penalty with a view to its abolition. This section details the standards that are most relevant to ESC countries.

 

  • Persons against whom death penalty shall not be imposed

The international law and standard suggested that death sentences should not be passed on people who were under 18 years of age at the time the crime was committed, or on pregnant women, nursing mothers, the elderly and people with mental disabilities.[22]

 

  • Death Penalty as an exceptional measure

Under International Convention on Civil and Political Rights (ICCPR) Article 6(2) states that “[i] countries which have not abolished the death penalty, sentences of death may be imposed only for the most serious crimes”. “The expression ‘most serious crimes’ must be read restrictively to mean that the death penalty should be a quite exceptional measure”  stated by the UN Human Rights Committee[23] while the UN Special Rapporteur on extrajudicial, summary or arbitrary executions has interpreted the expression to refer to intentional killing.[24]

 

  • Mandatory Death Penalty is in breach of International Law

In circumstances where the death penalty is imposed without taking into account the defendant’s personal circumstances or the circumstances of the particular offence, the automatic and mandatory imposition of the death penalty constitutes an arbitrary deprivation of life, in violation of article 6, paragraph 1, of the ICCPR.[25] The UN Special Rapporteur on extrajudicial, summary or arbitrary executions has stated that the death penalty should under no circumstances be mandatory by law and that “the mandatory death penalty which precludes the possibility of a lesser sentence being imposed regardless of the circumstances is inconsistent with the prohibition of cruel, inhuman or degrading treatment or punishment”.[26]

 

 

  • Fair Trail safeguards

Article 14 of the ICCPR and Article 8 of the American Convention on Human Rights set out certain standards of fair trial.[27] According to the UN Human Rights Committee the imposition of a sentence of death upon conclusion of a trial in which the provisions of the ICCPR have not been respected constitutes a violation of article 6 of the Covenant.[28]Assistance of counsel should be ensured through legal aid as necessary throughout out  the proceedings right from being arrested to persons accused of serious crimes, in particular in cases of offences carrying the death penalty.[29]

On 25th  May 1984 the UN Economic and Social Council adopted a resolution 1984/50 for the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, states that “Capital punishment may be carried out pursuant to only a final judgement rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, equal to those contained in International Covenant on Civil and Political Rights Article 14, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings”.

 

  • Pardon or Commutation of sentence

According to Article 6(4) of the ICCPR “anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases”.

 

  • Cruel inhuman and degrading aspects of the Death Penalty

Torture and other cruel, inhuman or degrading treatment or punishments to person, facing death penalty are clearly prohibited under international human rights and humanitarian law.[30] The prohibition is a peremptory norm of which applies to all states in the International law, irrespective of their specific treaty obligations and this law is also explicitly set out in numerous international and regional treaties. 

The UN Human Rights Committee found that certain rights of prisoners are been violated on death row detention conditions such as right to be treated with humanity and respect for the inherent dignity of the person in line with Article 10 of the ICCPR[31]. It has called on states to improve in line with the requirements of the provisions of the ICCPR including Articles 7 and 10(1) regarding respect for the human dignity of people deprived of their liberty.[32]

The UN Economic and Social Council has urged UN member states in which the death penalty may be carried out “to effectively apply the UN Standard Minimum Rules for the Treatment of Prisoners, in order to keep to a minimum the suffering of prisoners under sentence of death and to avoid any exacerbation of such suffering”.[33]

 

 

 

Conclusion

The death penalty is seen as the most suitable punishment for the worst crimes and also an effective deterrent for the same. Prior to the Amendment Act of Criminal Procedure (CrPC) 1955, the death penalty was the rule and life imprisonment an exception in India. There was a time when the courts were at a time, bound to give an explanation for awarding a lighter penalty than death for capital offences. However, after the amendment of 1955 courts were at liberty to grant either death or life imprisonment at their discretion according to the gravity and nature of the crime. According to Section 354 (3) of the CrPC , Amendment Act of 1973 the courts are required to state reasons in writing for awarding the maximum penalty which is a reverse.

Thus, now a life sentence is the rule and death penalty an exception in capital offences. Despite a global moratorium against the death penalty by the UN, India chose to retain the death penalty as a mode of punishment in exceptional cases because India is of view that criminals guilty of having committed intentional, cold-blooded, deliberate and brutal murders if are not treated accordingly it would thus be allowing them to escape with a lesser punishment which will deprive the law of its effectiveness and result in travesty of justice.

However, it does not mean that the criminals or the person accused of crime with the death Penalty lose their rights soon to be brought before the law. They can claim and exercise their rights till they are proven guilty or executed. Various International laws as we have seen above, have been made by keeping the nature of the punishment in mind and the associated other activities in relation to the death penalty. Indian Constitution has also given certain safeguards to protect the rights of the person accused and convicts of death Penalty. He can claim and exercise all his fundamental rights till he is executed for the same, for instance right to food, hygiene, speedy trial or to even avoid delay in the execution etc.

 

However despite of India’s decision to keep the death penalty there have been various arguments against the same –

  • The death penalty is considered to have a deterrent effect in society. However, statistical evidence doesn’t confirm that deterrence works. Due to mental illness or defect some of those executed may not have been capable of being deterred. Some perpetrator commits crimes without thinking about any possible consequences in such an emotional state. Death has been prescribed in rape cases since 2013[34] but we can still see the incidents of rapes that continue and in fact, the brutality of rapes has increased manifold.
  • Execution of the Innocent: The most common argument against capital punishment is that there is every likely chance that innocent people may get killed, because of mistakes or flaws in the justice system. According to Amnesty International the risk of executing the innocent can never be eliminated, as long as human justice remains fallible
  • In the last decade, on numerous occasions the Supreme Court has expressed concern about arbitrary sentencing in death penalty cases. It is difficult to distinguish cases where death penalty has been imposed from those were the alternative of life imprisonment has been applied the court noted.
  • Prisoners on death row continue to face long delays in trials, appeals and thereafter in executive clemency. They continue to suffer from extreme agony, anxiety and debilitating fear arising out of an imminent yet uncertain execution. Certain unique circumstances have been acknowledged by the Supreme Court that produces physical and psychological conditions of near-torture for the death row convict.[35] Numerous committee reports as well as judgements of the Supreme Court have recognized that the administration of criminal justice in India is in deep crisis. Lack of resources, outdated modes of investigation, over-stretched police force, ineffective prosecution, and poor legal aid are some of the problems besetting the system. And it is a harsh truth that Death penalty operates within this context and therefore suffers from the same structural and systemic impediments.

India forms part of a small and ever dwindling group of nations in retaining and practising the death penalty. The countries that abolished the death penalty in law or in practice, demonstrates that evolving standards of human dignity and decency do not support the death penalty. There is also a trend towards successful abolition of the death penalty that by retaining the death penalty is not a requirement for effectively responding to insurgency, terror or violent crime. However, despite the pressure from the International arena India chose to retain the death penalty because it believes real justice requires people to suffer for their wrongdoing, and to suffer in a way appropriate for the crime. Each criminal should get what their crime deserves and in the case of a crime like murder what their crime deserves is death.

 

Reference

( 27th March 2024).

●       S. Aatif, The Principle Of Rarest Of Rare: A Critical Analysis, Legal Service India

  https://www.legalserviceindia.com/legal/article-3634-the-principle-of-rarest-of-rare-a-critical-analysis.html (25th March 2024).

●       Two Britons, one Moroccan sentenced to death by court of Russian proxy in Ukraine

               https://www.reuters.com/world/europe/separatist-donbas-region-issues-death-penalty-captured-british-        moroccan-fighters-2022-06-09/ (29th March 2024).

 

 

 

Dhrishti IAS, Death Penalty https://www.drishtiias.com/printpdf/death-penalty-2

Citations

[1] (1982)3SCC24.

[2] The Onus of Deciding “Rarest Of The Rare”: Evolution Of The Rarest Of The Rare In The Indian Jurisprudence https://www.linkedin.com/pulse/onus-deciding-rarest-rare-evolution-indian-jurisprudence-px6bf?utm_source=share&utm_medium=member_android&utm_campaign=share_via ( Last accessed on 27th March’ 2024).

[3] S. Aatif The Principle Of Rarest Of Rare: A Critical Analysis, Legal Service India

https://www.legalserviceindia.com/legal/article-3634-the-principle-of-rarest-of-rare-a-critical-analysis.html ( 25th March 2024).

[4] Annette Choi and DakinAndone, Executions in the U.S. is in decline-but some jurisdiction lead the rest, CNN, Oct.16, 2023 https://www.cnn.com/2023/10/06/us/us-executions-death-penalty-dg/index.htm ( 28th March 2024).

[5] 408 U.S. 238 (1972).

[6] 554 U.S. 407 (2008).

[7] 553 U.S 35 (2008).

[8] 576 U.S. 863.

[9] 572 U.S. (2014).

[10] 1965 Act received Royal Assent on 8 November 1965 and, in accordance with s 3(4), came into force the following day. The Act did not extend to Northern Ireland, and capital punishment for murder was abolished there by the Northern Ireland (Emergency Provisions) Act 1973, s 1. The last execution in Northern Ireland, that of Robert McGladdery, took place on 20 December 1961.

 

[11] The death penalty remained on the statute book until 1998 for treason, piracy with violence, arson in Her Majesty’s dockyards, and military offences, but no executions had been carried out since 1946 for any offences other than murder.

 

[12] Indian Act, No 8 of 1911( British India).

[13] Army Act 1881, s 4, set out the offences in relation to the enemy which were punishable by death.

[14] Hansard, HC Deb 24 July 1998 vol. 316 col. 1385.

[15] R (Harris) v. Secretary of State for Defence, CO/5391/2004.

 

[16] 2002 (2)AC 235, para 44.

[17]Danny Bird, How the ‘’Red Terror Exposed the True Turmoil of Soviet Russia 100 years ago, Time, Sept. 5 2018. https://time.com/5386789/red-terror-soviet-history/

[18] The Criminal Code Of The Russian Federation No. 63-Fz Of June 13, 1996     https://wipolex-res.wipo.int/edocs/lexdocs/laws/en/ru/ru080en.html ( 25th March 2024).

 

[19]  Two Britons, one Moroccan sentenced to death by court of Russian proxy in Ukraine

https://www.reuters.com/world/europe/separatist-donbas-region-issues-death-penalty-captured-british-moroccan-fighters-2022-06-09/ (29th March 2024).

 

[20] 1983 AIR 957

[21] Id 1.

[22] Extrajudicial, summary or arbitrary executions: Report by the Special Rapporteur, UN document E/CN.4/1998/68, 23 December 1997, para.117.

[23] Human Rights Committee, General Comment No.6: The Right to Life, 27 July 1982.

[24] Special Rapporteur on extrajudicial, summary or arbitrary executions, A/67/275,9 August 2012.

[25] Pagdayawon Rolando v Philippines, Views of the Human Rights Committee, Communication No. 1110/2002, UN document CCPR/C/82/D/1110/2002, 8 December 2004, para. 5.2.

[26] Extrajudicial, summary or arbitrary executions: Report by the Special Rapporteur, UN document E/CN.4/1999/39, 6 January 1999, para. 63.

[27] These include the right of anyone facing a criminal charge to: a fair and public hearing by a competent, independent and impartial tribunal; be presumed innocent until proved guilty; informed promptly and in detail in a language which they understand of the nature and cause of the charges against them; adequate time and facilities to prepare a defence; communicate with counsel of their choosing; to free legal assistance if they are unable to pay for it; to examine witnesses for the prosecution and to present witnesses for the defence; to free assistance of an interpreter if necessary; not to be compelled to testify against themselves or to confess guilt; and to appeal to a higher court.

[28] Maryam Khalilova v Tajikistan, Views of the Human Rights Committee, Communication No. 973/2001, U.N. document CCPR/C/83/D/973/2001, 13 April 2005, para. 7.6

[29] Concluding observations of the Human Rights Committee: Trinidad and Tobago, UN document CCPR/CO/70/TTO, 3 November 2000, para. 7.

[30] The right not to be subjected to torture or other ill-treatment is recognized, among other international instruments, in Article 5 of the Universal Declaration of Human Rights and Article 7 of the ICCPR. Regional treaties for the protection of human rights also recognize this right, such as Article 5(2) of the American Convention on Human Rights.

[31] Shaw v Jamaica, Communication No. 704/1996, U.N. Doc. CCPR/C/62/D/704/1996, at para 7.2 (June, 1998); Berry v Jamaica, Communication No. 330/1988, Views adopted 1994 , Un Doc: ICCPR/C/50/D/330/1988,t para 11.2; Bennet v. Jamaica, Communications No. 590/1994, views adopted May 1999 , UN Doc CCPR/C/65/D/590/1994, at parax 10.7 and 10.8; Kennedy v. Trinidad and Tobago, Communication No. 845/1998 26 March 2002 CCPR/C/74/D/845/1998.

[32] Concluding observations of the Human Rights Committee: Japan, UN document CCPR/C/79/Add.102, 19 November 1998, para. 21; Concluding observations of the Human Rights Committee: Uzbekistan, UN document CCPR/CO/71/UZB, 26 April 2001, para. 10; and Safarmo Kurbanova v Tajikistan, Views of the Human Rights Committee, Communication No. 1096/2002, UN document CCPR/C/79/D/1096/2002, 12 November 2003, para. 7.8.

[33] Resolution 1996/15, adopted on 23rd July 1996. The UN Standard Minimum Rules for the Treatment of Prisoners was adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.

[34] Criminal Law Amendment Act 2013.

[35] Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 61(India).

Cite this article as:
UMMEY SAFIA BEGUM, “Death Penalty: The “Rarest of the rare” doctrine.”, Vol.5 & Issue 5,
Law Audience Journal (e-ISSN: 2581-6705), Pages 223 to 242 (18th April 2024), available at
https://www.lawaudience.com/death-penalty-the-rarest-of-the-rare-doctrine.

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