Hanging, confinement and the sentencing debate India won’t have

Ask anybody what a “death sentence” in India actually means, and the honest answer is that it can mean three quite different things. It can mean the noose—hanging by the neck until death; it can mean permanent confinement in jail—a term the courts now call imprisonment for the remainder of one’s natural life, and, far more often than either of the first two, it can simply mean delay in delivery of justice—a death sentence that is neither carried out nor commuted, waiting for completion of investigation, trial before the sessions court, hearing of a confirmation proceeding in a high court, appeal against conviction in the Supreme Court, or hearing of a mercy petition nobody has decided for years, sometimes for decades, until age or illness does what the state never got around to doing itself.

Indian jurisprudence has built an entire architecture around the first two forms of death. It has almost nothing to say about the third — even though the third is, for most people who receive a death sentence in this country, the one they actually get.

As of December 31, 2025, a total of 33 cases involving 46 persons were pending before the Supreme Court (including a review petition and a curative petition). The average period for which a case remained pending before the Supreme Court was 6.06 years, with a median duration of 6.59 years.

The longest duration for which a case remained pending was 13.94 years, while the shortest period of pendency was 0.12 years (44 days). As many as 312 cases involving 478 persons were pending before various high courts as of December 31, 2025. The average duration of pendency before the high courts was 2.99 years. The median duration was 2.33 years, with a maximum pendency duration of almost 20 years.

The rope at Tihar, the cot in a Yerwada ward, and the undertrial barrack at the Arthur Road jail where an accused has waited years are, in the final accounting, three routes to the same outcome: a body that does not return home.

Indian law has spent half a century debating which is more humane, more just, and more deterrent — without confronting the uncomfortable question underneath: is a punishment that guarantees dying in custody, just slowly, actually more merciful than one that ends the same life in seconds?

And is a punishment that guarantees nothing at all — neither death nor freedom, only years of not knowing — the one Indian criminal justice has quietly settled on by default, without ever admitting that it is a sentence at all? The question, “to hang or don’t hang,” is the real conundrum. It deserves a public debate since India has failed in its obligations to the Constitution and its constitutional duties.

Two events in the last four weeks have once again sparked this issue. Recently, a fast-track court in UP handed down death penalty punishments in 22 sentences within four months, sparking a concern on whether the judge truly appreciated the jurisprudence on the death penalty. This resulted in the jurisdictional court transferring nearly 100 cases pending in his court in connection with offences involving the death penalty.

Two weeks later, the Supreme Court had to note that a double murder trial took 22 years and the appeal was pending in the high court for another 22 years, even as the accused was in custody all the while. Curiously, instead of granting bail on account of the violation of the accused’s right to a speedy trial, the Supreme Court remanded the matter back to the high court.

The jurisprudence of method

India’s constitutional courts have engaged mostly with how a condemned person dies, not with the deeper equivalence between the sentences. In Deena v Union of India (1983), the Supreme Court upheld death by hanging, holding that it did not violate the guarantee of a fair, just and reasonable procedure under Article 21 (protection of life and personal liberty) and that hanging caused unconsciousness within seconds.

The unresolved question is the mode of execution of the death penalty and whether there is a fairer mode of execution. The Supreme Court, though, declined to refer Deena’s case to a larger bench, noting pointedly that lethal injection has produced a documented pattern of botched executions in the United States and that India’s record under hanging has produced none.

What is notable is the assumption embedded in all of this jurisprudence, old and new: that the state’s obligation is to make the manner of dying humane, while the fact of a much longer dying process under a life sentence — or under no sentence at all, only an unresolved appeal — attracts no comparable scrutiny.

The sentencing philosophy: 3 categories, not 2

Bachan Singh v State of Punjab (1980) gave India its governing doctrine: death only in the “rarest of rare” case, where the alternative of life imprisonment is “unquestionably foreclosed". That formula assumed a binary — brief death or a life sentence with the ordinary possibility of release after 14 years.

Swamy Shraddananda (2008) broke the binary. Uneasy with imposing death, yet equally uneasy with an offender walking free in 14 years, the court invented a third category: imprisonment for the remainder of a person’s natural life, with remission judicially barred. V Sriharan (2016) upheld this power, over a dissent warning that it created a punishment with no statutory basis and no route back into the ordinary remission process. It was framed as mercy.

It can just as easily be read as the judiciary quietly choosing slow death over instant death, without ever calling it death. The unevenness this produces is not abstract: Two men convicted of comparably shocking murders can leave the courtroom with entirely different sentences, because the doctrine turns on a subjective judicial sense of how “rarest” a case truly is — the same collective conscience that sent one man to the gallows has, in other cases just as brutal, let another walk free after 14 years.

Whether that assessment stays merely doctrinal has also become a live, unfinished question. In Manoj (2022), the Supreme Court had adjourned the matter for submissions on sentencing, with directions eliciting reports from the probation officer, jail authorities, a trained psychiatrist and psychologist, etc., to assist the accused in presenting mitigating circumstances.

In April 2026, the Supreme Court stayed the execution of three men sentenced to death for rape and murder under the POCSO Act, finding that neither the trial court nor the high court had conducted anything resembling the Manoj inquiry, and ordered a full mitigation investigation — psychological evaluation, jail conduct, probation report — before the sentence could be treated as final.

Weeks later, in July 2026, a different bench declined to reopen four whole‑life sentences on similar grounds, holding that Sriharan had settled the constitutional question and that a two‑judge bench could not revisit it. Between those two orders sits the same unresolved tension the rest of this piece is about: the doctrine keeps building safeguards around how death is decided, while the process of deciding continues to take years.

The Bharatiya Nyaya Sanhita, 2023, has now written the third category into statute. Where the old penal code left “imprisonment for life” to judicial interpretation—Shraddananda and Sriharan filled that gap by judgement—the Sanhita itself now defines certain sentences as running for “the remainder of a person’s natural life", most visibly in its provisions on aggravated and repeat sexual offences.

What used to be a judicial workaround is becoming Parliament’s own choice of punishment. This matters for a reason contrary to popular assumption: India is widely believed to be a country that sentences people to death. It is far more accurately described as a country that sentences people to versions of confinement‑until‑death, of which actual execution is the rarest.

Between 2001 and 2003, trial courts handed down over 3,000 death sentences; only eight people have been executed during that time. As of the end of 2023, 545 people sat on death row, more than a fifth of them in Uttar Pradesh alone. The gap between those numbers is not, mostly, the story of mercy triumphing over retribution.

It is the story of a system that sentences quickly and resolves almost never — a pattern visible in the rulings of the Uttar Pradesh fast‑track judge. Whatever explains that number, it is not evidence of a system moving toward the certainty that deterrence theory requires; if anything, it illustrates the opposite — sentencing that outruns the machinery meant to test.

The third death: Process as punishment

India’s courts have recognised, in patches, that the waiting itself can be its own punishment. In T V Vatheeswaran (1983), the Supreme Court held that prolonged delay in executing a death sentence could render the execution itself unconstitutional; that position was narrowed a year later in Sher Singh and restated more durably in Triveniben (1989), which held that delay is always relevant to commutation, to be weighed against the facts of each case rather than treated as an automatic entitlement.

Shatrughan Chauhan (2014) went further, commuting several death sentences on the footing that prolonged, unexplained delay in deciding mercy petitions itself amounted to torture and a violation of Article 21 — that keeping a person on death row for years without telling him whether he would live or die was, independent of anything else, a harm the Constitution does not permit.

What the court has never done is extend that same recognition — that not knowing is itself a harm — to the far larger population serving whole‑life sentences with no possibility of remission, who know with equal certainty that release will never come; only later, and more slowly, will there be release from life. Individual cases make the point starkly enough that they are worth citing once verified.

Reports exist of matters that took over four decades to reach a final verdict, with the delay attributed to failures within the judicial process itself. The pattern such reports describe is nonetheless common enough in India’s district courts to be unremarkable: files that outlive investigating officers and witnesses and sometimes outlast the convict’s own capacity to meaningfully participate in his own appeal.

Deterrence: The evidence that isn’t there

The Law Commission’s 262nd Report (2015) recommended abolishing the death penalty for all offences except terrorism and war against the state, and its central finding deserves more attention than it received: there is no credible evidence that the death penalty deters murder more effectively than life imprisonment. India’s own numbers make the deterrence argument hard to sustain empirically.

Executions have happened only a handful of times since 2000 — Dhananjoy Chatterjee in 2004 and the 2015 and 2020 groups of executions among them — against thousands of murder convictions every year. A punishment invoked this rarely cannot plausibly be doing the deterrent work its defenders claim for it. If that is right, a life sentence reliably enforced should deter as well as a death sentence that is almost never carried out.

The debate India needs to have

None of this argues for a conclusion so much as for a confrontation with all three forms of death this country hands down, not only the two it prefers to argue about. If a hanging, a whole‑life sentence, and a decade‑long wait for a mercy petition to be decided all end the same way — with a body that does not return home — then the retentionist‑versus‑abolitionist debate, as currently conducted, is arguing past the real question.

The honest debate is whether a nation more comfortable authorising decades of custodial dying, or years of undecided waiting, than a single afternoon of execution has actually chosen the more humane path, or has simply chosen the path that lets it look away for longer.

India’s courts have quietly built the apparatus for that debate — Bachan Singh’s rarest‑of‑rare threshold, Shraddananda’s third category, Manoj’s still‑unfinished inquiry into mitigation, Shatrughan Chauhan’s recognition of death‑row delay as harm — without ever holding the debate itself. The one form of death that apparatus has never had to answer for is the one it produces most often: not a sentence any court passed, but the years nobody decided.

Source: indianexpress.com, Amit Desai, Opinion, September 5, 2026. Amit Desai is a noted criminal lawyer and senior advocate.

"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
— Oscar Wilde

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