The 262nd Law Commission of India (“commission”) report on death penalty has recommended the abolition of death penalty for all offences except those related to terrorism. Three members of the commission dissent from this majority view, taking a retentionist stand. The argument this essay makes is not whether or not terrorism ought to be the exception, but that within the commission’s framework of the argument for abolition, ‘terrorism’ appears as an arbitrary exception. The report carves this exception by the sleight of a hand, in shifting the register of its argument. That is, from making ‘Constitutionalism Arguments’ for abolition to suddenly slipping into a ‘Democracy Argument’ for the exception. It comfortably slips through the cracks of what Habermas calls the “paradoxical union of contradictory principles,” namely, constitutionalism and democracy. In closely reading the report, this essay explores two crucial strands of the arguments that the abolitionists and the retentionists deploy: (a) the implications of indeterminacy in judicial decision-making on death penalty cases; and (b) a legislative supremacy argument which suggests that it is ultimately the legislature representing the ‘will of the people’ that has to decide on the issue of abolition. Finally, in aiding the commission’s argument for abolition, I read the landmark Santosh Kumar Bariyar v. State of Maharashtra (2009), via Jacques Derrdia’s Force of Law, to unearth the indeterminacies in legal decision-making that strengthen the justifications for abolition of the capital punishment.

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Rajgopal Saikumar, 'Negotiating Constitutionalism and Democracy: The 262nd Report of the Law Commission of India on Death Penalty' (2016) 12(1) Socio-Legal Review 81

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