SYNOPSIS SUBMISSION

AS PARTIAL SUBMISSION OF LLM DEGREE

2022-2023
TOPIC: JUDICIAL DISCRETION IN DEATH SENTENCING JURISPRUDENCE

A CRITICAL PERSPECTIVE

SUBJECT: ADVANCED EVIDENCE LAW

SUBMITTED BY SUBMITTED TO

ADABHUTA MISHRA DR. BHARTI YADAV

ROLL NO: 8LLM22 ASSISTANT PROFESSOR OF LAW

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 STATEMENT OF PROBLEM
The Philosophy of retaining the Imprisonment of life as a general rule and Death penalty as an
exception attributing to the 'special reasons ' is suffering from the distasteful and vacillating
discretion of the Indian Judges who stakes Accused/ Convict's life at peril. The Indian Judiciary
is unsettled of any uniform norms or principles or any directive guidelines of precedential value.
Section 354(3) of Code of Criminal 1973 aims at giving Judicial Discretion to the judges to give
decisions while being 'principle -centric' but the issue is Judges are guided by biased
predilections, values, preconceptions and personal imbibed inclinations is detrimental as the
inconsistency in the rationale of the decisions can cost the life of the accused or convicts.

REVIEW OF LITERATURE

 CANES-WRONE, BRANDICE, ET AL. “JUDICIAL SELECTION AND DEATH PENALTY

DECISIONS.”1

This article focused on as to how the Judiciary is not uniform in it‟s manner of selecting the
factors leading to the conviction of the convict with death penalty. The personal reflections in
discounting some factors can contribute to arbitrary imputing of death penalty.

 KLEIN, SUSAN R., AND JORDAN M. STEIKER. “THE SEARCH FOR EQUALITY IN
CRIMINAL SENTENCING.”2

This Article is focused on the philosophical discourse that the Court should use to shape the
judicial decision as there is a greater role entrusted upon the Court to view the Individual Rights
as of primal importance. Equality principle works like equivalence tenet which should be central
factor in sentencing.

1
Canes Wrone, et al. “Judicial Selection and Death Penalty Decisions.” (2014) 108(1) The American Political
Science Review <http://www.jstor.org/stable/43654045> Accessed 27 Feb. 2023
2
Bierschbach, Richard A., and Stephanos Bibas. “WHAT‟S WRONG WITH SENTENCING EQUALITY” (2016)
102(6) Virginia Law Review <//www.jstor.org/stable/43923342> Accessed 27 Feb. 2023

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  “DEATH PENALTY IN INDIA: REFLECTIONS ON THE LAW COMMISSION REPORT.”3

This Article is focused on crucial findings and recommendations that Law Commission of India
has suggested on giving Death Penalty. It has focused on legislative inadequacies and judicial
non-uniform approach which can be addressed with objective approach though subjectivity
should be retained but cautioned with standard uniformity and rationality.

 PALMER, LARRY I. “TWO PERSPECTIVES ON STRUCTURING DISCRETION: JUSTICES

STEWART AND WHITE ON THE DEATH PENALTY.”4

This article is focused upon on two twin side perspectives which create a disjunctive bilateral rift
of approaching the death penalty cases. The incipience of this rifting discord needs redress to
shape the judicial wisdom in a prudent and uniform manner.

 LEV, ORI. “PERSONAL MORALITY AND JUDICIAL DECISION-MAKING IN THE DEATH

PENALTY CONTEXT.”5

This article is focused on the hindsight perspective as to how the personal morality and personal
predilections of Judges affect the judicial decision making in the Death Penalty cases which costs
the accused and the convicts their lives due to arbitrary and biased judicial mindset.

RESEARCH OBJECTIVES
1. To get into the intricacies of judicial vacillation affecting Death penalty cases
2. To understand whether exercise of Judicial Discretion in a non-uniform manner would be
detrimental to the philosophical discourse of Death Sentencing Jurisprudence

3
“Death Penalty in India: Reflections on the Law Commission Report.” (2015) 50(40) Economic and Political
Weekly < http://www.jstor.org/stable/24482617> Accessed 27 Feb. 2023
4
Palmer, Larry I. “Two Perspectives on Structuring Discretion: Justices Stewart and White on the Death Penalty.”
(1973) 70(2) The Journal of Criminal Law and Criminology. <https://doi.org/10.2307/1142923> Accessed 27 Feb.
2023
5
Lev, Ori. “Personal Morality and Judicial Decision-Making in the Death Penalty Context.” (1994) 11(2) Journal of
Law and Religion, < https://doi.org/10.2307/1051382> Accessed 27 Feb. 2023

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 3. To understand the subtleties of „Principle-centric‟ sentencing and inefficacy of „Judge-
centric‟ sentencing
4. To decide the utility of preferring Trilogy test inclusive of Crime Test, Criminal Test and
Rarest of Rare doctrine Test

RESEARCH HYPOTHESIS
Imposition of Death Penalty is an outcome of „Judge-centric‟ sentencing, instead of „principle-
centric‟ sentencing

RESEARCH QUESTIONS
1. Whether Indian Judiciary derailing in a non-uniform manner from the dicta of Bachan
Singh and Machhi Singh cases in Death Penalty cases?
2. Whether Judicial Discretion exercised by Judges in Death Penalty cases is infected with
Judicial arbitrariness and vagaries of Personal opinions and predilections?

RESEARCH METHODOLOGY
This work is primarily based upon charting out of subjectivity that Indian Judges are infested
with which are proving detrimental to the Jurisprudence of death sentencing in long run and to
analyze the subtleties and intricacies of the issue, the Research Methodology would be Doctrinal
Research which would explore Various International and national published Articles, Various
Indian Supreme Court Cases and Case Laws of foreign jurisdictions, Reports published by Law
Commission of India on Death Penalty cases and Malimath Committee report on Criminal
Justice System (2003) would also be referred for better understanding of the issue at hand.

BIBLIOGRAPHY

 PRIMARY SOURCES

 LEGISLATIONS

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 I. The Constitution of India, 1950
II. Indian Penal Code, 1860
III. The Code of Criminal Procedure, 1898
IV. The Code of Criminal Procedure, 1973

 CASES

 INDIAN CASES

I. Bachan Singh v. State of Punjab 1982 AIR 1325.

II. Machhi Singh v. State of Punjab 1983 SCC (3) 470.
III. Maru Ram v. Union of India (1981) 1 SCC 107.
IV. Ramraj @ Nabhoo @ Bhinu v. State of Chhattisgarh, (2010) 1 SCC 573.
V. Shatrughan Chauhan v. Union of India (2014) 3 SCC 1.
VI. Dhananjoy Chatterjee @ Dhana v. State of West Bengal (1994) 2 SCC 220.
VII. Ashok Kumar Pandey v. State of Delhi (2002) 4 SCC 76.
VIII. Yakub Abdul Razak Memon v. State of Maharashtra (2013) 13 SCC 1.

 SECONDARY SOURCES

 ARTICLES

I. KI Vibhute, “Delay in execution of death sentence as an extenuating factor and the Supreme
Court of India: Jurisprudence and jurists' prudence” 35 Journal of the Indian Law Institute 122
(1993).
II. KN Chandrasekharan Pillai, “The quagmire of confusion in sentencing” (2013) 1 SCC 3.
III. Lev, Ori. “Personal Morality and Judicial Decision-Making in the Death Penalty Context.” Journal
of Law and Religion, vol. 11, no. 2, 1994, pp. 637–95.
IV. Muralidhar, S. “HANG THEM NOW, HANG THEM NOT: INDIA‟S TRAVAILS WITH THE
DEATH PENALTY.” Journal of the Indian Law Institute, vol. 40, no. 1/4, 1998, pp. 143–73.
V. “Death Penalty in India: Reflections on the Law Commission Report.” Economic and Political
Weekly, vol. 50, no. 40, 2015, pp. 12–15.

 BOOKS
I. Benjamin Cardozo, The Nature of the Judicial Process 114 (Yale University Press, 1921)
II. AG Noorani (ed), Challenges to Civil Rights Guarantees in India ch. 4: “Death penalty” 124
(Oxford University Press, 2012).
III. Julian V Roberts, “Punishing, More or Less: Exploring Aggravation and Mitigation at
Sentencing” in Julian V Roberts (ed), Mitigation and Aggravation at Sentencing 1 (Cambridge
University Press, 2011).
IV. Lethal Lottery: the Death Penalty in India - A Study of Supreme Court Judgments in Death
Penalty Cases 1950-2006 ch. 1-4 (Amnesty International, 2008).

 REPORTS

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 I. Law Commission of India, 35 Report on Capital Punishment (December, 1967).
II. Government of India, Committee on Reforms of Criminal Justice System (Ministry of Home
Affairs, 2003).
III. Law Commission of India, 262 Report on the Death Penalty
(August, 2015)

 WEBSITES

I. www.scconline.com
II. www.livelaw.in
III. www.manupatra.com
IV. www.law.cornell.edu
V. www.loc.gov
VI. www.law.justia.com
VII. www.deccanherald.com
VIII. www.constitutioncenter.org

 ONLINE DATABASE
I. JSTOR
II. HEINONLINE
III. OXFORD E-BOOKS
IV. SPRINGER E-BOOKS

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