Capital Punishment - 'Retention' versus 'Abolition' Debate and Indian Judiciary: A Socio-Jurisprudential Reappraisal

Bhatner Socio-Legal Journal, ISSN No. 2350-0603, Vol. 2, Year 2015, pp. 97-117

18 Pages Posted: 23 Sep 2015 Last revised: 3 Jun 2016

Date Written: 2015


If, in the words of Aristotle, a man is a 'social' animal then in Plato's words he is the most 'selfish' animal. But, for both the species, the centre of all their activities is the society which makes it possible for them to live an orderly and secured life. The crime and criminal behavior, both being omnipotent and omnipresent has been associated with the society and the individual since the history of human civilization and have created serious problems in the social order. To tackle with it, State devised and introduced sentencing policy. Out of the various forms of punishments inflicted by the State, 'capital punishment' or 'death penalty' stands distinct because of two main reasons, firstly, the punishment is irrevocable, and secondly, the punishment has a retributive nature due to which this punishment is a subject of intense debate all over the globe. An argumentative fight between Abolitionists and Retentionists is still going on this issue. One group questions its ethical and moral grounds whereas other puts forward their theory of deterrence. But this debate, however, remains unresolved in the present time. Whereas the Constitution of India on one hand provides for the 'right to equality' and 'right to life and personal liberty' to the individuals respectively under Articles 14 and 21, on the other hand individuals are asked to leave the membership of the society forever by tasting this sweetest lethal medicine in the name of 'procedure established by law' for the wrong done. The "rarest of rare" judicial phenomenon sometimes in few cases is an alien notion the existence of which is hard to find in the contents. Many countries have abolished capital punishment completely but India is still continuing with its retention policy like China. This paper mainly seeks to answer the questions, should capital punishment still have the same place in this contemporary criminal justice administration system where a 'State' has transformed into a 'Modern State' and the trends of the societies has also changed. And if so, then how far by inflicting this punishment, the State has maintained to secure an individual's right of 'right to be human'? How far Code of Hammurabi and Moasic Law is suitable to the modern society where a teacher teaches 'hate the sin not the sinner' and judiciary too accepts 'every saint has a past and every sinner has a future'. This paper also emphasizes on its genesis and the debate between Retentionists and Abolitionists on this issue with their strong pro and con arguments in order to reach to a concrete conclusion. The Law Commission's Report has also been mentioned as a response to this issue in India. The Constitutional basis of Capital Punishment and the judicial response have been also discussed in this paper.

Keywords: Capital Punishment, Constitution, Human Rights, Right to be human, Retention, Abolition, Indian Judiciary

JEL Classification: K39, K19, K49

Suggested Citation

Raza, Aqa, Capital Punishment - 'Retention' versus 'Abolition' Debate and Indian Judiciary: A Socio-Jurisprudential Reappraisal (2015). Bhatner Socio-Legal Journal, ISSN No. 2350-0603, Vol. 2, Year 2015, pp. 97-117. Available at SSRN:

Aqa Raza (Contact Author)

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