RISHI MALHOTRA VS. UNION OF INDIA - W.P.(Crl.) No. 145/2017 - Diary Number 29088 / 2017 - 18-Aug-2026 (Uploaded On 18-08-2026 15:34:59)
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 145 OF 2017
RISHI MALHOTRA & ANR. ….PETITIONER(S)
VERSUS
UNION OF INDIA ….RESPONDENT(S)
J U D G M E N T
Mehta, J.
1. Heard.
2. The instant writ petition in form of a public
interest litigation under Article 32 of the Constitution
of India has been instituted by the petitioner Shri
Rishi Malhotra, challenging the constitutional
validity of Section 354(5) of the Code of Criminal
Procedure, 19731 (Corresponding to Section 393(5) of
the Bhartiya Nagarika Suraksha Sanhita, 2023 2)
insofar as it prescribes hanging as the sole method of
1 For short, “CrPC”.
2 For short, “BNSS”.
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execution. The reliefs sought by the petitioner are as
follows:
“a. Declare provisions contained u/s 354(5)
Cr.P.C., 1973 to be ultra vires the Constitution
and especially in contravention of Article 21 of
the Constitution being discriminatory and
violative of Article 21 of the Constitution and also
in contravention of the Constitution Bench
Judgment in Gian Kaur's case (supra);
b. Declare Right to Die by a dignified procedure
of death is a Fundamental right as defined under
Article 21 of the Constitution of India.”
3. Before proceeding to examine the submissions
of the parties and the issue of constitutional validity
posed for determination, it would be apposite to
briefly notice the background in which the present
challenge has been laid. The issue raised in the
instant petition cannot be viewed in isolation but
must be examined within the broader framework of
capital punishment jurisprudence and the historical
development of the method of its execution.
Background
4. Among all punishments permitted by law, death
penalty stands apart in its severity and finality. When
a Court of law, upon due adjudication, imposes a
sentence of death for a crime, the State, through its
constitutional machinery, is called upon to carry out
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a punishment of the gravest nature , one that, once
executed, is incapable of being undone. If an error
occurs, whether in the process, or the proportionality
of punishment, the consequences cannot be undone.
It is this final and irreversible character of death
penalty that has placed it at the centre of continuing
debate in constitutional law, criminal jurisprudence
and moral philosophy, both in India and across
jurisdictions.
5. The legitimacy of the death penalty has been
debated over centuries. Those who argue against it
have maintained that the State possesses no moral
authority to take a human life ; that the punishment
does not function as an effective deterrent to crime ;
and that its irreversibility is unconscionable in any
legal system where the possibility of error can never
be entirely eliminated. Conversely, those who argue
in favour have maintained that certain crimes are of
such gravity, and the harm caused to society so
profound, that no punishment other than death
adequately serves the ends of retribution, deterrence
and the protection of society at large.
6. In India, the question of the legality of capital
punishment has been examined through the prism of
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constitutional scrutiny, beginning with the decision
of this Court in Jagmohan Singh v. State of U.P.3,
where a Constitution Bench affirmed that the death
penalty did not violate the guarantees under Articles
14, 19, or 21 of the Constitution of India, provided it
was imposed upon conclusion of a lawful trial with
robust procedural safeguards. This position was
further fortified and nuanced in the seminal decision
of Bachan Singh v. State of Punjab 4 wherein a
Constitution Bench of this Court while reaffirming
the constitutionality of the death sentence, famously
institutionalized the “rarest of rare ” doctrine,
mandating that the capital punishment be reserved
only for those cases where the alternative of life
imprisonment is unquestionably foreclosed. By virtue
of the law laid down in Bachan Singh (supra), it
stands settled that the death penalty is not per se
unconstitutional. That substantive question stands
concluded and is not the subject matter of any
further debate.
7. However, the constitutional validity of the
sentence does