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RISHI MALHOTRA VS. UNION OF INDIA - W.P.(Crl.) No. 145/2017 - Diary Number 29088 / 2017 - 18-Au…

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) 2026 INSC 873 1 …

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By Law United Editorial Desk18 August 2026Judgments

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)

2026 INSC 873

1

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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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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

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