| Contents |
| Chapter I |
Introduction |
| A. |
References from the Supreme Court |
| B. |
Previous Reports of the Law Commission |
| (i) |
The 35th Report on Capital Punishment (1967) |
| (ii) |
The 187th Report on the Mode of Execution (2003) |
| C. |
Need for re-examining the 35th Report |
| (i) |
Development in India |
| (ii) |
The new Code of Criminal Procedure in 1973 |
| (iii) |
The emergence of constitutional due-process standards |
| (iv) |
Judicial developments on the arbitrary and subjective application of the death penalty |
| (v) |
Recent Political Developments |
| (vi) |
International Developments |
| D. |
The Consultation Process Adopted by the Commission |
| E. |
The Present Report |
| Chapter II |
History of the Death Penalty in India |
| A. |
Pre-Constitutional History and Constituent Assembly Debates |
| B. |
Legislative Backdrop |
| C. |
Previous Law Commission Reports |
| (i) |
The 35th Report of the Law Commission |
| (ii) |
The 187th Report of the Law Commission |
| D. |
Constitutionality of the Death Penalty in India |
| (i) |
From Jagmohan to Bachan Singh |
| (ii) |
Mandatory Death Sentences |
| (iii) |
Method of Execution |
| (iv) |
Delay and the death penalty |
| E. |
Laws on the death penalty in India |
| Table 2.1 |
Capital offences in IPC |
| Table 2.2 |
Capital offences in other laws |
| (i) |
Recent expansions of the scope of the death penalty |
| (ii) |
The Death Penalty and Non-Homicide offences |
| Table 2.3 |
Non-Homicide Capital offences |
| (iii) |
Continued existence of the mandatory death penalty |
| (iv) |
Death penalty and anti-terror laws |
| (v) |
Bills proposing abolition of the death penalty |
| F. |
Recent Executions in India |
| Chapter III |
International Trends |
| |
International Trends |
| A. |
Developments in the International Human Rights Law Framework |
| (i) |
Capital Punishment in International Human Rights Treaties |
| (ii) |
Safeguards regarding capital punishment in international law |
| (iii) |
Political commitments regarding the Death Penalty globally |
| (iv) |
Death penalty and the law of extradition |
| B. |
International Trends on the Death Penalty |
| (i) |
Regional Trends regarding the Death Penalty |
| C. |
Conclusion |
| Chapter IV |
Penological Justifications for the Death Penalty |
| A. |
Scope of Consideration |
| B. |
Approach of the 35th Report of Law Commission |
| C. |
Deterrence |
| (i) |
Empirical Evidence on Deterrent Value of the Death Penalty |
| (ii) |
Assumptions of Deterrence |
| (iii) |
The Case of Terrorism |
| D. |
Incapacitation |
| E. |
Retribution |
| (i) |
Retribution as Revenge |
| (ii) |
Retribution as Punishment Deserved by the offender |
| F. |
Proportionality |
| G. |
Reformation |
| (i) |
Supreme Court on Reformation |
| H. |
Other important issues |
| (i) |
Public Opinion |
| I. |
The Move towards Restorative Justice |
| Chapter V |
Sentencing in Capital offences |
| A. |
The Bachan Singh Framework: Guided Discretion and Individualized Sentencing |
| B. |
Implementation of the Bachan Singh Framework |
| (i) |
Doctrinal Frameworks |
| (ii) |
Factors considered Aggravating and Mitigating |
| (iii) |
Rules of Prudence |
| (iv) |
Empirical Data on the Imposition of the Death Penalty |
| C. |
Systemic and Structural Concerns with the Criminal Justice Process: Implications for the Death Penalty |
| (i) |
Assessing Capacity to Reform |
| (ii) |
Economic and Educational Vulnerability |
| D. |
Fallibility of the Criminal Justice System and the Death Penalty |
| (i) |
Guilt Determination |
| (ii) |
Admitted Error in Imposing the Death Sentence |
| Table 5.1 |
List of Cases Doubted in Bariyar, Sangeet, Khade |
| (iii) |
Variations in Application of the Rarest of Rare framework in the same case |
| Chapter VI |
Clemency Powers and Due Process Issues Pertaining to the Execution of Death Sentence |
| A. |
Introduction |
| B. |
Nature, Purpose and Scope of Clemency Powers |
| C. |
Standard of Judicial Review for Examining Exercise of Mercy Powers |
| D. |
Duty of Writ Courts Carrying Out Judicial Review of Exercise of Mercy Powers |
| E. |
Subjectivity in Exercise of Power under Article 72 by the President |
| Table 6.1 |
Details of Mercy Petitions Decided by the President |
| F. |
Judicial Review of Exercise of Mercy Powers |
| (i) |
Chronic Mental Illness Ignored |
| (ii) |
Cases involving Long delays in Investigation and Trial |
| (iii) |
Partial and Incomplete Summary Prepared for President |
| (iv) |
Non-Application of Mind |
| (v) |
Mercy Petition Rejected Without Access to Relevant Records of the Case |
| (vi) |
Wrongful Executions and Failure of the Clemency Process |
| (vii) |
Cases of Other Prisoners Sentenced to Death under Judgements Subsequently Declared to be Per Incuriam |
| G. |
Constitutional Implications of Pain and Suffering Imposed on Convicts on Death Row in the Pre-Execution Phase |
| (i) |
Enduring Long Years on Death Row |
| (ii) |
Illegal Solitary Conditions of Detention |
| H. |
Conclusion |
| Chapter VII |
Conclusions and Recommendation |
| A. |
Conclusions |
| B. |
Recommendation |
| Annexure I |
List of Participants |
| I and II. |
Law Commission of India |
| III. |
Other Speakers |
| IV |
Other Invitees/Participants |
|
Appendix A |
|
Note on Death Penalty |
|
Appendix B |
|
Appendix C |
