India's Death Penalty and the Crisis of Judicial Discretion

On 7 September 2026, the Additional District and Sessions Judge of Muzaffarnagar, Ravi Kumar Diwakar, handed down his twenty-third death sentence in five months, sentencing Nadeem to death for burning his wife alive over dowry. In his thirty-eight-page judgment, the judge invoked “the great people of India” directly, echoing his earlier assertion that he “would rather die than be called a cowardly judge,” made after ninety-seven criminal cases were withdrawn from his court.

Judicial courage is a virtue. It becomes problematic, however, when this principle is treated as a framework for sentencing decisions.

The Trial Court Paradox

Judge Diwakar's trajectory points to a structural pathology within India's capital sentencing system. According to the Square Circle Clinic, trial courts sentenced 128 people to death in 2025, with Uttar Pradesh recording the highest number of any state; over the preceding decade, sessions courts imposed 1,279 death sentences.

The appellate record tells a markedly different story. For the third consecutive year, the Supreme Court confirmed no death sentences in 2025. Of the 153 capital cases it adjudicated, the Court acquitted the accused in ten cases — the highest number in a decade — and commuted seventy-one sentences. The Allahabad High Court, which reviews Judge Diwakar's sentences on appeal, has historically confirmed only 8.31 per cent of the death sentences referred to it, a figure that points to a deeper dysfunction in the hierarchy of justice delivery.

Rarest of Rare, or Rarest of Standards?

India's capital sentencing doctrine originates in Bachan Singh v State of Punjab (1980) and Machhi Singh v State of Punjab (1983), which confined the death penalty to the “rarest of rare” cases in which life imprisonment is “unquestionably foreclosed,” and which required judges to weigh aggravating and mitigating circumstances.

Subsequent decisions exposed the doctrine's instability. In Sangeet v State of Haryana (2013), the Court observed that application of the “rarest of rare” standard had become inconsistent and judge-centric; in Shankar Kisanrao Khade v State of Maharashtra (2013), the absence of uniform sentencing criteria was likewise acknowledged; and in Chhannu Lal Verma v State of Chhattisgarh (2019), Justice Kurian Joseph called for the death penalty itself to be reconsidered.

What was conceived as a narrow gate had, in practice, become a rhetorical formula invoked whenever the facts appeared sufficiently brutal to justify capital punishment. A central flaw in Bachan Singh was that, although the judgment required judges to assess the “probability of reformation” before imposing a death sentence, it established no procedure for gathering the information such an assessment would require. In Manoj v State of Madhya Pradesh (2023), the Supreme Court acknowledged that death sentences had routinely been imposed without evidence of a convict's background or capacity for reform, and it directed trial courts to conduct psychiatric and prison-conduct evaluations before sentencing.

Dupare and the Constitutional Watershed

Vasanta Sampat Dupare v Union of India (2025) marks the most significant development in this jurisprudence in years. The Court held that a Manoj-compliant sentencing hearing constitutes a right guaranteed under Articles 14 and 21 of the Constitution, and it permitted convicts who had exhausted their appeals to seek fresh sentencing hearings in order to bring their sentences into conformity with this requirement.

Dupare thus severs the conviction and sentencing stages of a capital case. The Constitution contemplates two distinct inquiries: first, whether the accused is guilty beyond reasonable doubt; and second, whether that person merits capital punishment. These are analytically and procedurally separate questions.

Capital sentencing, on this view, is not merely an extension of a finding of guilt. Measured against this standard, the Diwakar judgment reads less as a legal determination of the appropriate sentence than as a document composed for its rhetorical effect on the public.

The Legitimacy Inversion

A paradox underlies the characterisation of mass death sentencing as judicial bravery. Judge Diwakar presents his record as evidence of his willingness to stand up to organised crime and to the state — and the problem of corruption's influence on criminal law and judicial independence is, indeed, a serious one. Yet courage in capital sentencing lies not in the number of sentences imposed, but in a judge's willingness to withhold a death sentence where the constitutional threshold for imposing one has not been met.

According to the Square Circle Clinic, 364 wrongful convictions have been recorded in capital cases over the past decade. Irreversibility is not incidental to the death penalty debate; it is the debate's central constitutional premise.

What the Numbers Reveal

Available data indicate that sessions courts impose between 76 and 166 death sentences annually, of which the High Courts confirm only a small proportion. The Supreme Court, for its part, has confirmed none in the past three years.

As of December 2025, approximately 574 individuals remained on death row — the highest figure this century — even as actual executions in India have declined markedly over the past two decades. The system, in other words, increasingly emphasises severity rather than punishment as such. This is troubling in the absence of reliable evidence that capital punishment deters crime in India, particularly against the backdrop of persistent wrongful convictions and procedural irregularities.

A related development is the growing use of Life Imprisonment Without Remission (LWOR), which is increasingly displacing the death penalty as a mode of punishment. Because the Dupare ruling established no corresponding safeguards for LWOR, this sentence offers convicts no prospect of release and imposes no accountability for how it is administered.

Conclusion: Towards Principled Adjudication

The debate between abolitionism and retentionism, important as it is, obscures a more immediate question: will death-sentencing courts adhere to the constitutional principles articulated in Bachan Singh, Machhi Singh, Manoj, and Dupare?

Judicial independence does not entail judicial unaccountability. A judge who imposes twenty-three death sentences in five months, and who speaks of himself in martyr-like terms, has blurred the boundary between the judicial, political, and personal dimensions of the office.

The safeguards surrounding capital cases — appellate scrutiny under the BNSS, the power of presidential pardon under Article 72 of the Constitution, the Supreme Court's special leave jurisdiction under Article 137, and the newly recognised Dupare right to a sentencing hearing — exist for one reason: because death is irreversible.