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Report No. 262

The Death Penalty

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

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