99 of death penalty required ‘special reasons’; and through Section 253(2) – sentencing required separate consideration from the question of conviction. In both phases, i.e., post-1955 and post-1973, capital punishment was upheld to be constitutional by 5-judge benches of this court in Jagmohan Singh and Bachan Singh, respectively. 185. The 262nd Law Commission Report on Death Penalty (2015) (hereafter, ‘262nd Report’), is a result of this court’s references in primarily two cases. Firstly, in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra 84 (hereafter ‘Santosh Bariyar’) where, after taking note of the UN General Assembly Resolution 62/14985 it was pointed out that credible research was required to shape an informed discussion and debate, on the contentious issue of death sentence. Secondly, the judgment in Shankar Kisanrao Khade v. State of Maharashtra86 tasked the Law Commission to resolve the issue of whether death penalty is a deterrent punishment, is retributive justice, or serves an incapacitative goal; and to study the difference in approach adopted by the judiciary (rarest of rare) and the executive (what was termed as unknown) while granting commutation. In attempting to fulfil this mandate, the Commission discerned an urgent need for re-examination of its own earlier recommendations on the death penalty (in its 35th Report, 1967), given the drastic change in social, economic, and cultural contexts of the country since the 35th Report, and arbitrariness which has remained a major concern in the adjudication of death penalty cases since Bachan Singh laid down the foundational principle of ‘rarest of rare’. 186. Reflective of changed circumstances and evolving discourse, the report marks a shift in the approach towards the death penalty in India, going so far as to recommend abolition in all offences, except those relating to terrorism. A large part of the report focusses on courts’ discretion and judicial reasoning 84 (2009) 6 SCC 498 (para 112). 85 Adopted on 18.12.2007. 86 (2013) 5 SCC 546 (para 148-149).