Rishi Malhotra & Anr. v. Union of India
[2026] 9 S.C.R. 226 : 2026 INSC 873
Rishi Malhotra & Anr.
v.
Union of India
(Writ Petition (Criminal) No. 145 of 2017)
18 August 2026
[Vikram Nath and Sandeep Mehta,* JJ.]
Issue for Consideration
Challenge to the constitutional validity of s.354(5) of the Code
of Criminal Procedure, 1973 (corresponding to s.393(5) of the
Bhartiya Nagarika Suraksha Sanhita, 2023) insofar as it prescribes
hanging as the sole method of execution.
Headnotes†
Code of Criminal Procedure, 1973 – s.354(5) – Present writ
petition in form of a public interest litigation u/Art.32 of the
Constitution of India was filed challenging the constitutional
validity of s.354(5), CrPC (corresponding to s.393(5) of the
Bhartiya Nagarika Suraksha Sanhita, 2023) insofar as it
prescribes hanging as the sole method of execution:
Held: Constitutional validity of s.354(5) of the CrPC insofar
as it prescribes hanging as the only mode of execution of
death sentence has already been examined and settled by a
three-Judges Bench of this Court in Deena hence, the scope
of interference by a Bench of two-Judges on the very same
issue is extremely limited – No case made out for referring the
decision of the three-Judges Bench in Deena to a larger Bench
for reconsideration of the constitutional validity of s.354(5) of
the CrPC/s.393(5) of the BNSS – After a threadbare analysis
of the scientific material and a wholesome consideration of the
mechanism of the system of hanging, the three-Judges Bench
in Deena held that the preliminary procedures are simple and
quick; the chances of accident during hanging is minimal and;
satisfies the constitutional obligation of the State u/Art.21 to
ensure that the sentence is carried out with decency, dignity and
without unnecessary brutality – Neither the petitioner nor the
impleader has placed on record any material capable of casting
doubt upon the view so expressed by the three-Judges Bench
* Author
[2026] 9 S.C.R. 227
Rishi Malhotra & Anr. v. Union of India
in Deena – Petitioner has failed to place any material before this
Court which would justify doubting the correctness of view taken
in Deena or to demonstrate that the aforesaid view has lost its
efficacy or stands diluted by subsequent constitutional, scientific
or empirical developments – No compelling reason to refer the
correctness of three-Judges Bench decision in Deena to a larger
Bench – Principle of Stare Decisis. [Paras 58-60, 63]
Death Sentence – Hanging as a mode of execution vis-à-vis
lethal injection – Much emphasis was laid by the petitioner
that hanging as a mode of execution is physically painful
and physiological traumatic to the condemned prisoner:
Held: Such argument was not supported by any unimpeachable
scientific or empirical evidence – Petitioner advanced a contention
that intravenous lethal injection is a more scientific, humane and
painless method for execution of a death penalty –The impleader,
advanced a contrary submission by placing material before this
Court highlighting the uncertainty and inconsistencies associated
with execution by lethal injection – The material relied upon by
the impleader serves to underscore the inherent complexities
and practical difficulties associated with lethal injection and
reinforces the necessity of subjecting any proposed alternative
method of execution to rigorous constitutional scrutiny before its
adoption – Consequently, there is no concrete scientific material
on record to satisfy the Court that execution by lethal injection is
demonstrably superior or more humane method of carrying out
a sentence of death – The available material does not establish
that lethal injection has any added advantage over hanging as a
mode of execution of a death sentence – Hence, the argument
advanced by the petitioner that lethal injection is a better and
more humane mode of execution of the death sentence is totally
unconvincing. [Paras 53, 54, 62]
Principle of Stare Decisis – Issue settled by a three-Judges
Bench of this Court – Scope of interference by a Bench of
two-Judges on the very same issue is extremely limited:
Held: Constitutional validity of s.354(5) of the CrPC insofar as it
prescribes hanging as the only mode of execution of death sentence
has already been examined and settled by a three-Judges Bench
of this Court in Deena hence, the scope of interference by a Bench
of two-Judges on the very same issue is extremely limited –
228 [2026] 9 S.C.R.
Supreme Court Reports
Principle of Stare Decisis mandates that a bench of lesser number
of Judges should not depart from the ratio of a decision rendered
by a larger bench, which has withstood the test of time for more
than four decades – Unless it is demonstrated that the view so
taken in the earlier decision has been rendered unconstitutional
owing to some significant constitutional development, legislative
amendment or cogent scientific and empirical evidence, there
would hardly be any justification for a Bench of two-Judges to
take a different view – Deena has further been considered and
approved by a Constitution Bench of this Court in Shashi Nayar
hence, the scope of interference by this Court becomes even
more restricted. [Paras 48, 49, 51]
Law Commission Reports – Reliance upon – Observations
therein are recommendatory in nature – Petitioner contended
that the Law Commission in its 187th report submitted in the
year 2003 observed that execution by hanging is accompanied
by intense torture and pain:
Held: Observations made in the Law Commission Report
are simply recommendatory in nature – It may reasonably be
presumed that the legislators and the policy makers must have
considered the 187th report of the Law Commission in its entirety
and have thought fit not to amend the mode of execution of
death sentence in the newly drafted BNSS which replaces the
CrPC. [Para 61]
Death Sentence – Alternative mode of execution – Petitioner
also argued as regards the alternative mode of execution of
death sentence provided under the military statutes viz. Army
Act, 1950, Air Force Act, 1950, Navy Act, 1957, wherein, death
by shooting is recognized as an alternate mode of execution:
Held: Said argument is irrelevant and unconvincing because the
statutes in which shooting is provided as a mode of execution
operate in a distinct field and govern a separate class of persons
subject to military law – These instances cannot be relied upon
to test the constitutional validity of the provisions governing the
execution of a sentence of death imposed upon civilians under
the ordinary criminal law. [Paras 55, 56]
Capital Punishment – Jurisprudence of – Historical
development of the method of its execution, discussed.
[Paras 4-24]
[2026] 9 S.C.R. 229
Rishi Malhotra & Anr. v. Union of India
Case Law Cited
Jagmohan Singh v. State of U.P. [1973] 2 SCR 541 : (1973) 1
SCC 20; Bachan Singh v. State of Punjab [1979] 3 SCR 1193 :
(1980) 2 SCC 684; Deena v. Union of India [1984] 1 SCR 1 :
(1983) 4 SCC 645; Gian Kaur v. State of Punjab [1996] 3 SCR
697 : (1996) 2 SCC 648; Shabnam v. Union of India [2015] 8
SCR 289 : (2015) 6 SCC 702; A.K. Roy v. Union of India [1982] 2
SCR 272 : (1982) 1 SCC 271; Supreme Court Employees’ Welfare
Association v. Union of India [1989] 3 SCR 488 : (1989) 4 SCC
187; Suresh Seth v. Commissioner, Indore Municipal Corporation
(2005) 13 SCC 287; Union of India v. Deoki Nandan Aggarwal
[1991] 3 SCR 873 : (1992) Supp. 1 SCC 323; Asif Hameed v.
State of J&K [1989] 3 SCR 19 : (1989) Supp. 2 SCC 364; Aravali
Golf Club v. Chander Hass [2007] 12 SCR 1084 : (2008) 1 SCC
683; Shashi Nayar (Smt) v. Union of India [1991] Supp. 2 SCR
103 : (1992) 1 SCC 96 – referred to.
Baze v. Rees, 553 U.S. 35 (2008) – referred to.
Books and Periodicals Cited
187th Report Law Commission of India; “Gruesome Spectacles:
Botched Executions and America’s Death Penalty”.
List of Acts
Code of Criminal Procedure, 1973; Bhartiya Nagarika Suraksha
Sanhita, 2023; Constitution of India; Penal Code, 1860; Code of
Criminal Procedure, 1861; Codes of 1882 and 1898; Army Act,
1950, Air Force Act, 1950; Navy Act, 1957.
List of Keywords
Section 354(5) of the Code of Criminal Procedure, 1973;
Section 393(5) of the Bhartiya Nagarika Suraksha Sanhita, 2023;
Hanging; Hanging as a mode of execution; Death Penalty; Death
Sentence; Capital Punishment; Lethal injection; Intravenous
lethal injection; Alternative mode of execution; Proportionality of
punishment; State Jail Manuals; Punjab and Haryana Jail Manual.
Case Arising From
CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Criminal)
No. 145 of 2017
Under Article 32 of the Constitution of India
230 [2026] 9 S.C.R.
Supreme Court Reports
Appearances for Parties
Advs. for the Petitioner(s):
Rishi Malhotra, Sr.Adv./Petitioner-in-person, Ms. Meenakshi
Arora, Sr. Adv., Ms. Ansuiya, Shivaansh Maini, Prem Malhotra,
Ms. Shreya Rastogi, Ms. Prerna Priyadarshini, Kush Chaturvedi,
Syed Faraz Alam, Atharva Gaur, Aayushman Aggarwal,
Ms. Ayesha Choudhary, Pramothesh Mukherjee.
Advs. for the Respondent(s):
R Venkataramani, Attorney General for India, Tushar Mehta,
Solicitor General, Ms. Sonia Mathur, Sr. Adv., Ms. Shradha
Deshmukh, Kanu Agarwal, Mayank Pandey, Chitvan Singhal,
Abhishek Kumar Pandey, Kartikay Aggarwal, Ms. Ameyavikrama
Thanvi, Ms. Shraddha Deshmukh, Raman Yadav, Arvind Kumar
Sharma.
Judgment / Order of the Supreme Court
Judgment
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, 20232) insofar as it prescribes hanging as the sole method
of 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);
1 For short, “CrPC”.
2 For short, “BNSS”.
[2026] 9 S.C.R. 231
Rishi Malhotra & Anr. v. Union of India
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 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 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
3 (1973) 1 SCC 20.
232 [2026] 9 S.C.R.
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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 not preclude
a scrutiny of the means employed to carry it out. While the legality of
the punishment is established, the specific process of its enforcement
i.e. hanging by the neck, remains subject to examination on the
touchstone of Article 21 of the Constitution of India. The core issue
posed before this Court is whether the only prescribed method of
execution in the criminal statute i.e., CrPC/BNSS conforms to the
mandate of just, fair, and reasonable.
8. To appreciate the question that is posed, it is necessary to trace,
briefly, the history of the method of execution that has been prescribed
under Indian law and the manner in which it has come to occupy
that position.
9. In the pre-colonial period, the administration of criminal punishment
across the country was neither uniform nor governed by any codified
legal standard. Different ruling dispensations administered criminal
justice in accordance with their own customs and commands, and
the methods by which sentences of death were carried out varied
widely across regions and rulers. No consistent procedural framework
existed governing the manner of execution. The physical suffering of
the condemned was, in many instances, regarded not as incidental
to the punishment but as an integral part of it.
10. The shift toward a uniform method of execution began with the
codification of criminal law in colonial times. While the Indian Penal
4 (1980) 2 SCC 684.
[2026] 9 S.C.R. 233
Rishi Malhotra & Anr. v. Union of India
Code, 1860, provided the legal authority to impose death penalty,
it was the Code of Criminal Procedure, 18615, that first established
‘hanging by the neck’ as the sole method to carry it out.
11. This selection was framed as a humanitarian reform of the era,
utilizing the long-drop technique. The method was premised on
a clinical calculation of the condemned’s height and weight to
ensure a fracture of the cervical vertebrae, purportedly resulting in
instantaneous loss of consciousness and life.
12. The prescription of execution by hanging, continued unchanged
through the subsequent enactments of the Codes of 18826 and 18987.
Even after independence, when the Code of Criminal Procedure,
1973 was enacted as a comprehensive revision of criminal procedure
by the Parliament, the position remained unaltered, and Section
354(5) was reproduced in substance from its predecessor. Notably,
the recent transition to the Bharatiya Nagarik Suraksha Sanhita,
20238, which sought to modernize and decolonize India’s criminal
laws, has once again retained the same prescription on the mode
of execution of death penalty. Consequently, the legal mechanism
for execution remains unchanged across more than a century and
a half of statutory progressions.
13. Execution by hanging, as prescribed under the law, is based on the
premise that a carefully calculated drop will fracture or dislocate the
cervical vertebrae of the condemned person, severing the spinal cord,
leading to rapid loss of consciousness and death. The calculations
governing the length of the drop are to take into account the height
and weight of the condemned, with the objective of generating
sufficient force to cause instantaneous cervical fracture without
causing decapitation. The method thus relies on generating sufficient
force to achieve instantaneous cervical dislocation while avoiding
excessive force and is aimed to minimise physical suffering.
14. The operation of this method involves a number of variables, including
the accuracy of the calculation, the physical condition of the convict,
and the manner in which the procedure is carried out. Variations in
5 See section 53.
6 See section 368.
7 See section 368.
8 See section 393(5)
234 [2026] 9 S.C.R.
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these factors have been noted to produce differing outcomes. Where
the drop is shorter than required, death may occur by asphyxiation
rather than cervical dislocation; where it is longer, the force generated
may be greater than intended. These possibilities have been noted
in studies examining the working of the method.
15. In this context, the Royal Commission on Capital Punishment
(1949-53) examined various methods of execution and identified
the three minimum requirements that any method of execution must
satisfy, viz. it should cause death as quickly as possible; it should
be as painless as possible and; it should involve the least possible
mutilation of the body. The Commission found that hanging, even
when properly administered, did not always meet these standards,
and that the margin for error was considerable.
16. Similarly, the Law Commission of India, in its 35th Report on Capital
Punishment published in September 1967, examined various modes
of executing death sentence. The Commission acknowledged a
considerable body of opinion in favour of replacing hanging with a
more humane and painless method. In paragraph 1150 of the Report,
it observed that the mode of execution should be “certain, humane,
quick and decent”. The Commission, however, did not recommend
an immediate change, taking the view that the matter should await
further advances in scientific knowledge and technology, but its
acknowledgment of the problem was clear.
17. These institutional examinations formed part of the broader
background against which the constitutionality of the prescribed
method of execution under Section 354(5) of the CrPC came to
be considered for the first time by a three-Judge Bench of this
Court in Deena v. Union of India 9, wherein this Court upheld the
constitutional validity of hanging as mode of execution. In that
instance, the Court relied substantially upon government submissions
regarding the precision of the procedure, concluding that hanging,
when properly administered, satisfied the requirements of being a
quick, simple, and decent method of execution that was free from
unnecessary mutilation. For four decades, Deena (supra) has stood
as the authoritative judicial dispensation on the issue, bringing a
measure of finality to the constitutional debate regarding the mode
of execution in India.
9 (1983) 4 SCC 645.
[2026] 9 S.C.R. 235
Rishi Malhotra & Anr. v. Union of India
18. As per the petitioner, the issue cannot be examined solely on the
basis of the position as it stood when Deena (supra) was decided.
The intervening decades have witnessed significant developments in
scientific knowledge, forensic understanding, and evolving standards
of human dignity. These developments have materially altered the
factual and normative landscape within which the question must
now be assessed.
19. In this context, the Law Commission of India, in its 187 th Report
published in October 2003, undertook a fresh examination of the issue
and questioned the adequacy of the existing position. Acknowledging
the global shift away from hanging, the Commission noted that the
method is undoubtedly accompanied by intense physical suffering,
pain, and mental agony referencing international safeguards that
require the state to inflict the minimum possible suffering even when
carrying out a lawful death sentence.
20. The significant constitutional question now before us must thus be
viewed through the lens of a contemporary understanding of Article 21
of the Constitution of India. Since Deena (supra), our jurisprudence
on the right to life has evolved significantly. A constitution bench
of this Court in Gian Kaur v. State of Punjab 10 firmly established
that the right to life includes the right to live with human dignity up
to the end of natural life, which necessarily encompasses the right
to die with dignity. This constitutional protection does not cease to
exist at the gallows, it must apply with equal emphasis to prisoners
who are on death row.
21. It is in this evolved constitutional framework that the present challenge
must be examined. The issue is not one about the existence of the
State’s power to impose capital punishment, which stands recognised
in law, but the limits within which that power must operate. The
exercise of such power is necessarily conditioned by constitutional
safeguards. The State, even when authorised to take life, cannot
do so in a manner that is arbitrary, excessive, or incompatible with
human dignity. The method of execution must therefore satisfy the
constitutional requirements that it minimises suffering and preserves,
to the greatest extent possible, the inherent dignity of the condemned.
10 (1996) 2 SCC 648
236 [2026] 9 S.C.R.
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22. It was in this broader constitutional context that the writ petition was
first taken up for consideration on 6th October, 2017, when this Court,
while issuing notice, observed that constitutional perspectives are
not static and that the Constitution of India is a living and evolving
instrument. It was noted that a provision which was once upheld
as valid may, with the passage of time and in light of developments
in science and social thought, require reconsideration. The Court
also recorded the submission of the petitioner that execution by
hanging destroys the dignity of the condemned and referred,
inter alia, to the observations made in the dissenting opinion of
Bhagwati, J. in Bachan Singh (supra) regarding the physical and
psychological suffering associated with hanging. In that context,
this Court observed, prima facie, that the legislature may consider
whether alternative methods of execution could be devised so that
a person who is required by law to face the death sentence does
so without unnecessary pain and suffering.
23. In light of these observations and the constitutional questions raised,
this Court called upon the Union of India to explore whether more
humane and less painful alternatives to execution by hanging could
be considered. Pursuant thereto, as noted in the order dated 2nd May,
2023, Shri R. Venkataramani, learned Attorney General, informed
the Court that the Government was in the process of considering
the constitution of an expert committee to examine the issues raised
in the present proceedings.
24. However, no further update has been provided regarding the
constitution of any such committee. Even in the written submissions
filed on behalf of the Union of India, there is no indication that any
such committee has in fact been constituted.
25. Be that as it may, we have proceeded to hear the writ petition on
merits and have taken into consideration the submissions advanced
by Shri Rishi Malhotra, petitioner-in-Person; Shri R. Venkataramani,
learned Attorney General appearing for the respondent-Union of
India; and Ms. Meenakshi Arora, learned senior counsel appearing
for the impleader, Project 39A, National Law University, Delhi.
Submissions by the petitioner
26. Shri Rishi Malhotra, petitioner-in-person, submitted that the sole
method prescribed under Section 354(5) of the CrPC/Section 393(5)
of the BNSS, i.e. execution by hanging by the neck until death, is
[2026] 9 S.C.R. 237
Rishi Malhotra & Anr. v. Union of India
barbaric, inhumane and cruel, and cannot withstand constitutional
scrutiny under Articles 14 and 21 of the Constitution of India. He
submitted that the provision, as it stands, violates the right to life with
dignity guaranteed under Article 21, and that the manner in which
hanging is administered inflicts intense physical pain and suffering
upon the condemned person, rendering it violative of constitutional
principles.
27. In support of his submissions, the petitioner placed reliance upon
the 187th Report of the Law Commission of India on the Mode of
Execution of Death Sentence, published in October 2003, wherein
the Commission, after a detailed examination of the material before it,
categorically observed that hanging is “undoubtedly accompanied by
intense physical torture and pain”. He drew the attention of this Court
to the description of the process of execution by hanging recorded
in the said Report, which sets out in detail the procedure undergone
by a condemned prisoner, including being weighed, measured and
subjected to physical examination the day prior to execution for
the purpose of calculating the length of the drop and the physical
consequences that follow the execution itself, including instances
where the neck is not broken and death occurs by strangulation, and
where the condemned person remains suspended for a period of
eight to fourteen minutes before death is pronounced. The petitioner
submitted that this description, drawn from official sources and
as observed by the Law Commission of India itself, establishes
beyond the pale of doubt that the execution of a sentence of death
by hanging involves intense physical and mental suffering and is
unscientific as well as wholly inconsistent with the constitutional
guarantee of right to die with dignity.
28. The petitioner further submitted that the uncertainties inherent in the
method compound its inhumanity. He pointed out that if the drop
is too short, the cervical vertebrae may not fracture and death will
occur through slow and agonising strangulation. If the drop is too
long, the consequence may be decapitation. He submitted that no
method of execution whose administration carries such a margin
of error, and where possibility of failure in execution involves such
extreme levels of suffering, can be regarded as consistent with the
requirements of Article 21 of the Constitution of India. He also drew
the attention of the Court to the relevant provisions of State Jail
Manuals, including Chapter XXXI of the Punjab and Haryana Jail
238 [2026] 9 S.C.R.
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Manual, particularly paragraphs 868 to 873 thereof, which prescribe
in detail the steps leading to the execution of a sentence of death
and vividly illustrate the prolonged agony and psychological trauma
experienced by a condemned prisoner in the period leading up to
the execution of his sentence.
29. Shri Malhotra urged that the impugned provision is also in violation
of the resolutions of the United Nations Economic and Social
Council, particularly Safeguard No. 9 of the ‘ECOSOC Safeguards
Guaranteeing Protection of the Rights of Those Facing the Death
Penalty’, which provides that where capital punishment is inevitable,
it shall be carried out in a manner which inflicts the minimum possible
suffering. He submitted that execution by hanging, both in its design
and in its practical application, does not meet these standards. It
was contended that such international norms, though not binding,
serve as relevant guiding principles in interpreting the scope and
extent of the right to life and dignity as expounded under Article 21
of the Constitution of India.
30. Shri Malhotra further urged that the exclusive prescription of
hanging under Section 354(5) CrPC, gives rise to an arbitrary and
unconstitutional discrimination. He pointed out that under the Army
Act, 1950, the Air Force Act, 1950 and the Navy Act, 1957, the
sentence of death may be carried out either by hanging or by being
shot to death. The availability of shooting as an alternative method of
execution under these enactments, in his submission, demonstrates
that laws as prevailing in the country itself recognise the existence
of an alternative method of execution, while simultaneously denying
that option to persons convicted under the ordinary criminal law.
This differential treatment, he submitted, is arbitrary and violates
Article 14 of the Constitution of India, as there is no rational basis
for permitting a different method of execution for one category of
condemned persons while denying it to others.
31. Shri Malhotra thus urged that the time has come for this Court to
reconsider the ratio expounded in Deena (supra), in light of the
subsequent findings of the Law Commission of India, the evolution
of constitutional standards under Article 21 of the Constitution
of India, the growing international consensus on the minimum
requirements for humane execution, and the documented evidence
of the physical and psychological suffering caused by hanging. He
[2026] 9 S.C.R. 239
Rishi Malhotra & Anr. v. Union of India
contended that a provision rooted in colonial penal administration,
which has never been independently examined by Indian legislators
and which continues to prescribe a method of execution that inflicts
unnecessary pain and suffering, cannot be permitted to remain
on the statute book in its present form. He urged that this Court
ought to declare Section 354(5) of the CrPC/393(5) of the BNSS
unconstitutional and strike it down.
32. In the alternative, he submitted that should this Court not feel inclined
to strike down the provision in its entirety, it may be read down so
as to permit the execution of the sentence of death by such other
modes which may be less painful, more humane and consistent
with the constitutional guarantee of dignity under Article 21 of the
Constitution of India, including, but not limited to, execution by lethal
injection or by shooting.
Submissions on behalf of the impleader-Project 39A, National
Law University, Delhi
33. Ms. Meenakshi Arora, learned senior counsel submitted that while the
constitutionality of hanging as a mode of execution was considered by
a three-judge Bench of this Court in Deena (supra), the determination
in that case proceeded on a limited evidentiary basis, as no detailed
medical or scientific material examining whether execution by hanging
is in fact instantaneous and free from pain was placed before the
Court. She drew attention to the subsequent decision of this Court
in Shabnam v. Union of India11, wherein the principles laid down in
Deena (supra) were reiterated, and it was observed that the process
of execution ought to bring out immediate unconsciousness quicky
resulting into death without involving mutilation. It was submitted that
the unimpeachable scientific evidence available now demonstrates
that execution by hanging does not even barely meet this standard.
34. Ms. Arora further submitted, that a comprehensive review of scientific
and medical literature on judicial hanging, including post-exhumation
studies, historical analyses, and anecdotal narratives from officials
who had witnessed executions, establish that the method is neither
instantaneous nor pain-free. Particular reliance was placed upon a
1992 post-exhumation study of 34 individuals executed in England
11 (2015) 6 SCC 702.
240 [2026] 9 S.C.R.
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between 1882 and 1945, in which the skeletons of the executed
persons were examined. The study found that in ninety percent of the
cases examined, fracture of vertebrae C2 and C3 was present, while
in only three cases was the typical hangman’s fracture, a fracture
dislocation at the C2-C3 vertebrae was observed. In six cases, death
occurred through asphyxiation or strangulation rather than cervical
fracture, demonstrating that even in cases where the procedure
was administered by trained executioners, the desired outcome was
achieved in only a fraction of executions. She submitted that the
causes of death in hanging include not only asphyxiation but also
apoplexy caused by constriction of the jugular veins, decapitation
where the head is severed from the body, and trauma to the spinal
cord, none of which can be characterised as quick, painless or
consistent with the requirements of a dignified death. She also
referred to testimony recorded before the United States Senate in
1967, wherein Warden Clinton Duffy, who had participated in sixty
judicial hangings, described executions where prisoners’ necks often
did not break, prisoners strangled for several minutes with visible
bodily distress and humiliation, and death was pronounced only
after prolonged suspension, graphically underscoring the brutal and
uncertain nature of the method.
35. Ms. Arora urged that execution by hanging as prescribed under
Section 354(5) of the CrPC/Section 393(5) of the BNSS violates
Article 21 of the Constitution of India on three distinct grounds. Firstly,
hanging is not quick, as death by hanging is not instantaneous and
the scientific literature establishes that it frequently is not. Secondly,
the procedures in preparation for hanging including the weighing and
measuring of the condemned person, the calculation of the drop,
and the entire procedure leading up to the moment of execution
inflict tremendous psychological suffering and humiliation to the
condemned amounting to degrading treatment. Thirdly, the outcomes
of hanging are unpredictable and uncontrolled, dependent upon
variables that cannot be reliably managed, rendering the provision
and the procedure prescribed thereunder manifestly arbitrary. She
contended that the provision violates Article 14 of the Constitution
of India for the same reason, because a method whose outcomes
are variable and uncontrolled, and whose basis is not grounded in
scientific literature or empirical evidence, cannot satisfy the standard
of being just, fair and reasonable, and is arbitrary on its face.
[2026] 9 S.C.R. 241
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36. She further contended, that the Law Commission of India in its 187th
Report on the Mode of Execution of Death Sentence published in
October 2003 recommended lethal injection as an alternative mode
of execution, finding it to be quick, painless and controlled. In order
to provide the Court with a complete picture, she also referred to
evidence regarding the practical difficulties encountered with lethal
injection as administered in the United States. She submitted that,
of the fifty states in the United States, twenty-three have abolished
the death penalty, while the remaining twenty-seven retain it and
authorise execution by lethal injection, although four of those states
have paused executions by executive action. She drew our attention
to the decision of the United States Supreme Court in Baze v.
Rees12, wherein it was held that lethal injection did not guarantee
a painless death to a condemned prisoner.
37. Ms. Arora further urged that the three-drug protocol commonly
used for lethal injection, comprising a barbiturate to induce
unconsciousness, a paralytic agent to arrest muscle movement, and
potassium chloride to stop the heart, has itself been the subject of
serious concern in practice. She submitted that the failure of the
first drug to render the prisoner fully unconscious, combined with
the effect of the paralytic agent in preventing any outward display of
suffering, creates a risk of the prisoner experiencing extreme pain
while appearing outwardly calm. She referred to the high rate of
botched executions documented in the United States, including the
historical catalogue compiled in the book “Gruesome Spectacles:
Botched Executions and America’s Death Penalty”, which records
approximately 276 botched executions out of approximately 9,000
executions carried between 1890 and 2010, representing a botched
execution rate of approximately three percent. She also referred to
specific instances of failed executions, including the February 2024
attempt to execute Thomas Creech in Idaho, where the execution
team tried and failed eight times to insert a functioning intravenous
catheter, with the condemned person enduring two hours of such
attempts before the execution was called off and he was returned
to his cell. She submitted that this evidence is being placed before
this Court to demonstrate the complexity of the issue at hand and
to urge that lethal injection should not be adopted without scrutiny,
12 553 U.S. 35 (2008)
242 [2026] 9 S.C.R.
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and that any suggested alternative method of execution must itself
be assessed against constitutional standards/safeguards before
being prescribed.
Submissions on behalf of the respondent- Union of India
38. Shri R. Venkataramani learned Attorney General, vehemently and
fervently opposed the submissions advanced by the petitioner and
by the impleader. At the outset learned Attorney General urged that
instant writ petition is not maintainable, as the reliefs sought, being
in substance a direction to strike down or judicially substitute a
legislatively prescribed mode of execution, amount to an invitation
to this Court to redesign the penal framework, which is a function
exclusively within the domain of Parliament. He submitted that no
writ can be issued directing Parliament to enact a particular law
or adopt a particular legislative policy, and that the separation of
powers under the constitutional scheme bars such relief. Reliance
was placed upon judgments of this Court in A.K. Roy v. Union of
India13, Supreme Court Employees’ Welfare Association v. Union
of India14, and Suresh Seth v. Commissioner, Indore Municipal
Corporation15, in support of this submission.
39. He further submitted that the petitioner proceeds on broad assertions
of a medical, penological and sociological nature without laying a
concrete factual foundation necessary for striking down a statutory
provision, and that constitutional invalidation cannot rest on generic
averments or academic propositions alone.
40. Learned Attorney General further submitted that the constitutional
validity of hanging as a mode of execution is no longer res integra.
This Court in Deena (supra) specifically examined and upheld
validity of Section 354(5) of the CrPC, holding that the prescribed
method of hanging, when properly carried out, does not violate
the guarantee enshrined in Article 21 of the Constitution of India;
that unconsciousness supervenes almost instantaneously; that the
method eliminates the possibility of a lingering death and; that it
involves no barbarity, torture or degradation of any kind. He drew
13 (1982) 1 SCC 271.
14 (1989) 4 SCC 187.
15 (2005) 13 SCC 287.
[2026] 9 S.C.R. 243
Rishi Malhotra & Anr. v. Union of India
particular attention to paragraphs 81 to 84 of Deena (supra), wherein
this Court recorded that the State had discharged the heavy burden
of proving that execution by hanging does not violate Article 21 of the
Constitution of India, and that the conclusion was based on reason,
supported by expert evidence and the findings of modern medicine.
41. He further submitted that Parliament, in enacting the Bharatiya Nagarik
Suraksha Sanhita, 2023, had consciously retained the prescription
of hanging under Section 393(5), a legislative reaffirmation that
removes any doubt as to the continued policy choice of Parliament.
He submitted that this conscious retention by Parliament, with full
awareness of the existing debate, is itself a complete answer to the
challenge raised in the present petition.
42. Learned Attorney General contended that the plea of violation of
Articles 14 and 21 of the Constitution of India is unfounded. With
respect to Article 21, he submitted that the procedure established
by law for carrying out the sentence of death is firmly established,
it takes effect only after trial, sentencing, confirmation by the
constitutional Courts, i.e., High Court and Supreme Court in the
process of appeal, review, curative petition, and the mercy petition
to be considered by Hon’ble the President of India. The question
of justness and fairness of a method of execution can arise only
where a meaningful comparison between alternative methods is
free from doubt and uncertainty. It was submitted that no such
structured reliable comparison is available as on date, inasmuch as
every known method of execution carries its own uncertainties and
risks, and there exists no demonstrated, non-controversial standard
by which a choice between the different methods of execution can
be constitutionally tested. It was further submitted that Article 21
of the Constitution of India does not require the State to adopt the
best possible method of execution, it only requires that the method
should not be cruel, torturous or degrading, and that it be carried
out within a just and fair legal framework. He submitted that Article
21 of the Constitution of India does not confer upon a condemned
prisoner a right to choose the mode of his death, and that allowing
such a choice would generate further litigation, delay, uncertainty
and arbitrary outcomes.
43. It was further contended that the argument based on Article 14 of
the Constitution of India is equally misconceived. He submitted that
244 [2026] 9 S.C.R.
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Section 354(5) of the CrPC provides a uniform method of execution
for all persons sentenced to death, and that uniformity in treatment
reduces rather than creates scope for unequal treatment. On the
contention that military statutes, namely, the Army Act, 1950, the
Air Force Act, 1950 and the Navy Act, 1957, permits execution
by shooting in addition to hanging, it was urged that those are
specialised enactments applicable to military offenders and enacted
in the distinct context of military necessity, and that Parliament’s
decision not to extend the same provision to civilians tried under the
ordinary criminal law does not amount to hostile discrimination or
arbitrary differentiation. He submitted that Parliament is fully aware
of the existence of alternate modes of execution and has consciously
chosen to prescribe a single uniform mode under the civilian law,
and that this conscious policy choice cannot be characterised as
arbitrary in the constitutional sense.
44. It was urged by the learned Attorney General that the contention
based on the 187 th Report of the Law Commission of India is
misconceived and cannot sustain the challenge as such reports are
only recommendatory in nature and do not carry the force of law.
The non-implementation of the recommendations of Law Commission
of India is a legislative and policy decision of the executive and is
not amenable to powers of judicial review by this Court. He further
submitted that the 187th Report, did not recommend the abolition of
hanging rather it recommended the addition of lethal injection as an
alternative mode, while expressly cautioning against the deletion of
the existing statutory prescription. Reliance was placed upon Gian
Kaur (supra), to contend that a Law Commission recommendation
and the broader debate on desirability are not sufficient to establish
unconstitutionality. Further reliance was placed upon the judgment
in Union of India v. Deoki Nandan Aggarwal 16 to contend that
Courts cannot rewrite, recast or reframe legislation.
45. Learned Attorney General contended that the reliance placed on the
experience of the United States, particularly in relation to botched
executions and the use of lethal injection, is misconceived. It was
pointed out that the scale and frequency of executions in the two
jurisdictions are fundamentally different; while India carried out
16 (1992) Supp. 1 SCC 323.
[2026] 9 S.C.R. 245
Rishi Malhotra & Anr. v. Union of India
only eight executions between 2001 and 2023, the United States
conducted over one thousand executions during the corresponding
period. It was urged that the experience of lethal injection in the
United States does not establish it as a humane or reliable alternative.
On the contrary, it reveals serious systemic concerns, including
difficulties in venous access, shortages of requisite drugs, use of
untested protocols, and several documented instances of botched
executions. It was pointed out that scholarly material placed on
record itself indicates that lethal injection has one of the highest
rates of failed executions amongst the known methods.
46. In this backdrop, it was submitted that isolated instances of error
or failure in a foreign jurisdiction, operating under vastly different
conditions, cannot be treated as a valid benchmark for assessing the
constitutionality of an Indian statute. Reliance was also placed on the
caution expressed in Deena (supra) against uncritical dependence
on foreign material in this domain. It was further contended that no
credible material has been placed before this Court to demonstrate
even a single instance of a botched execution in India under the
existing statutory framework. Any alleged deviation, for the sake of
arguments, would at best relate to issues of implementation and
cannot form the basis for striking down the statutory provision itself.
47. Finally, learned Attorney General submitted that the question of the
mode of execution is a matter of penological policy falling squarely
within the domain of Parliament, and that the scope of judicial review
does not extend to substituting what this Court may consider to
be a preferable policy in place of that adopted by the legislature.
Placing reliance upon judgments of this Court in Asif Hameed v.
State of J&K17, and Aravali Golf Club v. Chander Hass 18, it was
urged that judicial power must be exercised with restraint and that
Courts cannot dictate or advise the executive in matters of policy
so long as constitutional boundaries are not transgressed. It was
further contended that if any reconsideration of Deena (supra) is
warranted, the appropriate course would be a reference to a larger
Bench, and not a judicial rewriting of the statutory provision. He
therefore prayed that the instant writ petition be dismissed.
17 (1989) Supp. 2 SCC 364.
18 (2008) 1 SCC 683.
246 [2026] 9 S.C.R.
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Discussion
48. At the outset, we may note that the constitutional validity of Section
354(5) of the CrPC insofar as it prescribes hanging as the only
mode of execution of death sentence has already been examined
and settled by a three-Judges Bench of this Court in Deena (supra).
Hence, the scope of interference by a Bench of two-Judges on the
very same issue is extremely limited.
49. Principle of Stare Decisis mandates that a bench of lesser number
of Judges should not depart from the ratio of a decision rendered
by a larger bench, which has withstood the test of time for more
than four decades. Unless it is demonstrated that the view so taken
in the earlier decision has been rendered unconstitutional owing to
some significant constitutional development, legislative amendment
or cogent scientific and empirical evidence, there would hardly be
any justification for a Bench of two-Judges to take a different view.
50. There is no dispute that in Deena (supra), the entire scope and
ambit of hanging as the mode of execution of a death sentence
was exhaustively considered with reference to foreign precedents,
expert opinions and other scientific materials then available before
the Court.
51. Deena (supra) has further been considered and approved by a
Constitution Bench of this Court in Shashi Nayar (Smt) v. Union
of India19. Hence, the scope of interference by this Court becomes
even more restricted.
52. Even while issuing notice in the present writ petition, this Court
relied upon the dissenting observations made by Justice Bhagwati
in Bachan Singh (supra), however, the fact regarding the ratio of
Deena (supra) having been approved by a Constitution Bench in
Shashi Nayar (supra) has not been touched in the order issuing
notice.
53. Much emphasis was laid by the petitioner, Shri Rishi Malhotra that
hanging as a mode of execution is physically painful and physiological
traumatic to the condemned prisoner. However, such argument
was not supported by any unimpeachable scientific or empirical
19 (1992) 1 SCC 96.
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Rishi Malhotra & Anr. v. Union of India
evidence. Shri Malhotra advanced a contention that intravenous
lethal injection is a more scientific, humane and painless method
for execution of a death penalty.
54. Ms. Meenakshi Arora, representing the impleader, advanced a
contrary submission by placing material before this Court highlighting
the uncertainty and inconsistencies associated with execution by
lethal injection. The material relied upon by the impleader serves
to underscore the inherent complexities and practical difficulties
associated with lethal injection and reinforces the necessity of
subjecting any proposed alternative method of execution to rigorous
constitutional scrutiny before its adoption. Consequently, there is
no concrete scientific material on record to satisfy the Court that
execution by lethal injection is demonstrably superior or more humane
method of carrying out a sentence of death.
55. Another fervent argument of Shri Malhotra was with reference to
the alternative mode of execution of death sentence provided under
the military statutes viz. Army Act, 1950, Air Force Act, 1950, Navy
Act, 1957, wherein, death by shooting is recognized as an alternate
mode of execution.
56. We find the said argument to be irrelevant and unconvincing because
the statutes in which shooting is provided as a mode of execution
operate in a distinct field and govern a separate class of persons
subject to military law. These instances cannot be relied upon to test
the constitutional validity of the provisions governing the execution
of a sentence of death imposed upon civilians under the ordinary
criminal law.
57. More importantly, the three-Judges Bench in Deena (supra)
specifically analysed and evaluated the comparative merits of
different methods of execution of death sentence. After examining
electrocution, lethal gas, shooting and lethal injection as modes
of execution, the Court concluded that none of these methods
possessed any distinct or demonstrable advantage over hanging.
In this regard, we may gainfully refer to the following paragraphs
of Deena (supra) :-
“71. Though it is generally believed that death by
electrocution is entirely painless, a distinguished French
scientist, L.G.V. Rota, disputes this contention. Labelling
248 [2026] 9 S.C.R.
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this method of executing the death sentence as a form
of torture. Rota contends that a condemned victim may
be alive for several minutes after the current has passed
through his body without a physician being certain
whether death has actually occurred or not. He adds
that some persons have greater physiological resistance
to the electric current than others, and that, no matter
how weak the person, death cannot supervene instantly.
Another attack on the. pain of death in electrocution
was made by Nicola Tesla, the electrical wizard [ See
New Horizons in Criminology by Harry Barnes & Negley
Teeters (3rd Edn., 1966, pp. 308-09)] . The opposite
view is expressed by Robert G. Elliott in ‘Agent of
Death’ (New York: Dutton, 1940). Robert Elliott, one-time
executioner for several eastern States, who officiated at
387 executions maintains that electrocution is painless.
72. Power seldom fails in countries like America,
U.S.S.R., and Japan. Even then, the failure of electrical
energy supplied by commercial undertakings has been
considered in America as an impediment in the use of the
electric chair. With frequent failures of electrical power in
our country, the electric chair will become an instrument
of torture. One can well imagine the consequences of
the use of the electric chair in the city of Calcutta or,
for the matter of that, in the capital city of Delhi. For
technical reasons, even the Supreme Court complex is
not spared from frequent load-shedding during working
hours. Lawyers, litigants and Judges have now trained
themselves to suffer the inconvenience arising from
failure of electricity. But, it would be most unfair to expect
a prisoner condemned to death to get into the electric
chair twice or thrice, for the reason that the electric
current failed during the process of electrocution. It is
not our intention to blame anyone for the power crisis
because it would seem that it is partly due to natural
causes and is not man-made. But facts are facts and
facts must be faced.
73. Execution by lethal gas is discussed by the Royal
Commission in paras 719 to 722 of its Report. The
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Rishi Malhotra & Anr. v. Union of India
Commission says in para 719 that they did not inspect
any lethal gas chamber during their visit to America, but
they were supplied with written evidence about execution
by lethal gas. They also had the advantage of hearing
evidence from one Mr Philip Allen, the then Deputy
Chairman of the Prison Commission and of receiving
a report from the English neurologist, Dr Macdonald
Critchley, both of whom had inspected the lethal chamber
at St. Quentin Prison, California, of which the famous
Clinton Duffy was a warden. In para 720 of the Report,
the Royal Commission says: “The lethal chamber is very
elaborate in comparison with the apparatus needed for
other methods of execution. It is expensive to install
and requires a complicated series of operations to
produce the gas and to dispose of it afterwards.” The
description of the gas-chamber method given by the
Royal Commission is like this:
“The chamber is required to be hermetically sealed
to prevent leakage of cyanide gas, the doors leading
to the chamber are required to be connected with
an electrically controlled panel, the prisoner’s arms,
legs and abdomen are tied to the chair with leather
straps, a pound of sodium cyanide pellets is placed
in a trap in the seat of the chair and three pints
of sulphuric acid and six pints of water mixed in a
lead container are placed in a position to receive
the cyanide pellets. A rubber hose is connected
to the head of a stethoscope which is strapped
to the prisoner’s chest. The entire clothing of the
prisoner is removed except for shorts. Finally, a
leather mask covers the prisoner’s face. After the
prisoner is pronounced dead, Ammonia gas is
forced into the chamber untill the indicators within
the chamber show that all cyanide gas has been
neutralised. The ammonia gas is then removed by
a specially constructed exhaust fan.”
Para 721 of the Royal Commission’s Report shows that
the length of time taken by this method of execution is
about 45 minutes. In para 722 the Commission says that
250 [2026] 9 S.C.R.
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when this method was first employed, it was thought that
the gas had a suffocating effect which would cause acute
distress if not actual pain, before the prisoner became
unconscious. According to the Commission, it seems to
be now generally agreed that unconsciousness ensues
very rapidly in the gas-chamber method.
74. Clinton Duffy, warden of San Quentin Prison,
California, says that the operation of the gas-chamber
execution includes “funnels, rubber gloves, graduates,
towels, soap, pliers, scissors, fuses and a mop: in
addition, sodium cyanide eggs, sulphuric acid, distilled
water, and ammonia” [ From his series of articles, “San
Quentin Is My Home”, Saturday Evening Post, March
25-May 13, 1950. This series was later published in
book form as The San Quentin Story (New York) :
Doubleday, 1950] .
75. Coming to the method of shooting by a firing squad,
we have already extracted an opinion which shows that
there are chances of bungling in that method. But a
more serious objection to which this method is open is
that it is the favourite pastime of military regimes which
trample upon human rights with impunity. They shoot
their citizens for sport. Shooting is an uncivilised method
of extinguishing life and it is enough to say in order to
reject it that the particular method is most recklessly and
wantonly used for liquidating opposition and smothering
dissent in countries which do not respect the rule of law.
Lastly, murders by shooting are becoming a serious
menace to law and order in our country. Shooting by the
State in order to kill for executing the order of a Court of
law will unwittingly confer respectability on the ‘shoot to
kill’ tactics which are alarmingly growing in proportion.
76. What remains now to consider is the system of
lethal injection. The Royal Commission has discussed
that method in paras 735 to 749 of its Report. Lethal
injection is by and large an untried method. But that is
not its most serious defect. The injection is required
to be administered intravenously, which is a delicate
and skilled operation. The Prison Medical Officers who
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Rishi Malhotra & Anr. v. Union of India
were interviewed by the Royal Commission doubted
whether the system of lethal injection was more humane
than hanging (see para 739 of the Report). The British
Medical Association told the Commission that no medical
practitioner should be asked to take part in bringing
about the death of a convicted murderer and that the
Association would be most strongly opposed to any
proposal to introduce a method of execution which would
require the services of a medical practitioner, either in
carrying out the actual process of killing or in instructing
others in the technique of that process. The Commission
expressed its conclusion in para 749 by saying that it
could not recommend that, in the present circumstances,
lethal injection should be substituted for hanging since
they were not satisfied that executions carried out by
the administration of lethal injections would bring about
death more quickly, painlessly and decently in all cases.
The Commission, however, recommended, unanimously
and emphatically, that the question should be periodically
examined, specially in the light of the progress made in
the science of anaesthetics.
77. We may lastly refer to the affidavit filed by one Dr
N.P. Singh who was allowed to intervene on behalf
of the National Association of Critical Care Medicine
(India), New Delhi. He says in his affidavit that society
has come to realise that death by hanging is not a
merciful and pleasant way of putting a patient to a
terminal end: “As members of the medical profession
and the Association, we feel that a patient may be put to
sleep by any sleep-inducing injection (barbiturates) and
subsequently, the above mentioned electrocution and
gas-chamber methods may be applied as the patient’s
sense would have been dulled by the drug injection.”
This system certainly has the merit of naivete and novelty
but, on the face of it, the system is impracticable and
would appear to involve complications and torture to an
uncommon degree. We may in this behalf draw attention
to an article “The Death penalty: Moral Argument and
Capricious Practice” by Andrew Rutherford, a senior
252 [2026] 9 S.C.R.
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Lecturer in Law at the Southampton University, which
appeared in The Listener of July 7, 1983, published
by the British Broadcasting Corporation. In that article,
the writer refers to an incident to the effect that in 1982
December, a prisoner was put to death in Texas by
means of an injection of sodium pentothol. The incident
led the American Medical Association to declare: “The
use of a lethal injection as a means of terminating the
life of a convict is not the practice of medicine.” The
writer proceeds to say that there is not likely to be any
great enthusiasm for the method of electrocution as well,
since in April 1983, it took three 30-second shots of 1900
volts before a man in Alabama was pronounced dead.
78. It is clear from this narrative that neither
electrocution, nor lethal gas, nor shooting, nor even
the lethal injection has any distinct or demonstrable
advantage over the system of hanging. Therefore,
it is impossible to record the conclusion with any
degree of certainty that the method of hanging should
be replaced by any of these methods.
80. There is a responsible body of scientific and legal
opinion which we have discussed, which holds the view
that hanging by rope is not a cruel mode of executing
the death sentence. That system is in operation in large
parts of the civilised world. That was the only method
of executing the death sentence which was known to
the Constituent Assembly and yet it did not express
any disapproval of that method, though it touched upon
the question of death sentence while dealing with the
President’s power of pardon under Article 72(1)(c) of
the Constitution.
81. Having given our most anxious consideration to the
central point of inquiry, we have come to the conclusion
that, on the basis of the material to which we have referred
extensively, the State has discharged the heavy burden
which lies upon it to prove that the method of hanging
prescribed by Section 354(5) of the Code of Criminal
Procedure does not violate the guarantee contained in
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Rishi Malhotra & Anr. v. Union of India
Article 21 of the Constitution. The material before us
shows that the system of hanging which is now in
vogue consists of a mechanism which is easy to
assemble. The preliminaries to the act of hanging
are quick and simple and they are free from anything
that would unnecessarily sharpen the poignancy
of the prisoner’s apprehension. The chances of an
accident during the course of hanging can safely be
excluded. The method is a quick and certain means
of executing the extreme penalty of law. It eliminates
the possibility of a lingering death. Unconsciousness
supervenes almost instantaneously after the process
is set in motion and the death of the prisoner
follows as a result of the dislocation of the cervical
vertebrae. The system of hanging, as now used,
avoids to the full extent the chances of strangulation
which results on account of too short a drop or of
decapitation which results on account of too long a
drop. The system is consistent with the obligation
of the State to ensure that the process of execution
is conducted with decency and decorum without
involving degradation or brutality of any kind.”
(Emphasis supplied)
58. After a threadbare analysis of the scientific material and a wholesome
consideration of the mechanism of the system of hanging, the three-
Judges Bench in Deena (supra) held that the preliminary procedures
are simple and quick; the chances of accident during hanging is
minimal and; satisfies the constitutional obligation of the State under
Article 21 to ensure that the sentence is carried out with decency,
dignity and without unnecessary brutality.
59. Neither the petitioner nor the impleader has placed on record any
material capable of casting doubt upon the view so expressed by
the three-Judges Bench in the afore-quoted paragraphs of Deena
(supra).
60. Taking a holistic view of the matter, we are of the considered view
that the petitioner has failed to place any material before this Court
which would justify doubting the correctness of view taken in Deena
254 [2026] 9 S.C.R.
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(supra) or to demonstrate that the aforesaid view has lost its efficacy
or stands diluted by subsequent constitutional, scientific or empirical
developments. Consequently, we do not find any compelling reason
which would persuade this Court to refer the correctness of three-
Judges Bench decision in Deena (supra) to a larger Bench.
61. So far as the argument advanced by the petitioner that the Law
Commission in its 187 th report submitted in the year 2003, has
observed that execution by hanging is accompanied by intense
torture and pain, we may simply note that the observations made
in the Law Commission Report are simply recommendatory in
nature. It may reasonably be presumed that the legislators and the
policy makers must have considered the 187 th report of the Law
Commission in its entirety and have thought fit not to amend the
mode of execution of death sentence in the newly drafted BNSS
which replaces the CrPC.
62. We also find merit in the submission advanced by learned Attorney
General that the petitioner has failed to demonstrate, by any credible
material, even a single instance of a botched execution in India under
the existing statutory framework. On the contrary, the material placed
on record by the impleader itself demonstrates that in the United
States of America, where lethal injection has been adopted in several
States as a mode of execution of death sentence, there have been
numerous botched executions. The available material, therefore,
does not establish that lethal injection has any added advantage
over hanging as a mode of execution of a death sentence. Hence,
the argument advanced by the petitioner that lethal injection is a
better and more humane mode of execution of the death sentence
is totally unconvincing.
Conclusion
63. In wake of the discussion made hereinabove, we are not persuaded
that a case has been made out for referring the decision of the three-
Judges Bench in Deena (supra) to a larger Bench for reconsideration
of the constitutional validity of Section 354(5) of the CrPC/Section
393(5) of the BNSS.
64. Before parting, we clarify that the dismissal of the present writ petition
must not be understood as foreclosing future constitutional scrutiny,
should compelling scientific, medical or empirical evidence emerge
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Rishi Malhotra & Anr. v. Union of India
demonstrating that the factual and scientific basis on which the
decision in Deena (supra) proceeded has been materially displaced
by subsequent developments. Constitutional interpretation is organic
and must remain responsive, both to the evolution of constitutional
doctrine and to advances in scientific knowledge.
65. We also observe that nothing contained in this judgment shall
preclude the Union Government, should it consider it appropriate,
from undertaking a comprehensive review of the existing method
of execution through an expert body comprising specialists in law,
forensic medicine, neuroscience, penology and allied disciplines,
with a view to examine whether any alternative method of execution
better serves the constitutional objective of minimising unnecessary
pain while preserving the dignity of the condemned prisoner. Any
such exercise would lie squarely within the domain of the Executive
and the Legislature and may be undertaken as a matter of policy,
in light of future scientific or technological developments.
66. The writ petition is dismissed with the above observations.
67. Pending application(s), if any, shall also stand disposed of.
Result of the case: Writ Petition dismissed.
†Headnotes prepared by: Divya Pandey