The Supreme Court has dismissed a public interest litigation challenging the constitutional validity of hanging as the prescribed method of execution under Section 354(5) of the Code of Criminal Procedure, 1973, and its successor provision Section 393(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023. A two-judge bench comprising Justices Vikram Nath and Sandeep Mehta held that the petitioner failed to displace the authoritative precedent of Deena v. Union of India, which was affirmed by a Constitution Bench in Shashi Nayar v. Union of India, and found no credible evidence of botched executions in India or demonstrable superiority of alternative methods such as lethal injection.
Background & Facts
The Dispute
The petitioner, Rishi Malhotra, filed a writ petition under Article 32 of the Constitution challenging the constitutional validity of Section 354(5) CrPC insofar as it prescribes hanging by the neck until death as the sole method of executing a death sentence. The petitioner contended that the provision violates Articles 14 and 21 of the Constitution, being discriminatory, barbaric, inhuman, and cruel. The reliefs sought included a declaration that the provision is ultra vires the Constitution and a declaration that the right to die by a dignified procedure is a fundamental right under Article 21.
Key Facts
- The petitioner relied on the 187th Report of the Law Commission of India (October 2003), which observed that hanging is "undoubtedly accompanied by intense physical torture and pain" and recommended lethal injection as an alternative mode of execution.
- The petitioner highlighted that under the Army Act, 1950, the Air Force Act, 1950, and the Navy Act, 1957, death sentences may be carried out either by hanging or by shooting, creating an arbitrary classification between military and civilian offenders.
- The impleader, Project 39A (National Law University, Delhi), placed on record scientific and medical literature, including a 1992 post-exhumation study of 34 individuals executed in England between 1882 and 1945, which found that in only three cases was the typical "hangman's fracture" observed, and in six cases death occurred through asphyxiation or strangulation.
- The impleader also cited evidence of botched lethal injections in the United States, including approximately 276 botched executions out of 9,000 between 1890 and 2010 (approximately three percent), and the February 2024 failed execution attempt of Thomas Creech in Idaho where eight attempts to insert an intravenous catheter were made over two hours.
- The Union of India opposed the petition, arguing that the constitutional validity of hanging was settled by a three-judge bench in Deena v. Union of India (1983) 4 SCC 645, approved by a Constitution Bench in Shashi Nayar v. Union of India (1992) 1 SCC 96, and that Parliament consciously retained hanging in the BNSS, 2023.
- The Attorney General submitted that India carried out only eight executions between 2001 and 2023, while the United States conducted over one thousand in the same period, and that no credible material demonstrated a single botched execution in India under the existing framework.
Procedural History
- 06.10.2017: Writ Petition (Criminal) No. 145 of 2017 taken up for consideration; Court issued notice, observed constitutional perspectives are not static, and noted prima facie that legislature may consider alternative methods.
- 02.05.2023: Attorney General informed the Court that the Government was considering constitution of an expert committee to examine the issues.
- No further update provided regarding constitution of any such committee.
- 18.08.2026: Judgment pronounced dismissing the writ petition.
The Parties' Positions
The petitioner argued that hanging is inherently painful, uncertain, and violates the right to die with dignity under Article 21, and that the differential treatment under military statutes violates Article 14. The impleader contended that hanging fails the three requirements of being quick, painless, and involving least mutilation, and that its outcomes are unpredictable and arbitrary. The Union of India maintained that Deena remains binding, that the choice of execution method is a legislative policy decision, that no reliable comparative standard exists to test constitutionality, and that the Law Commission's recommendations are advisory only.
Relief Sought
The petitioner sought: (a) declaration that Section 354(5) CrPC / Section 393(5) BNSS is ultra vires the Constitution and violative of Articles 14 and 21; (b) declaration that the right to die by a dignified procedure is a fundamental right under Article 21. In the alternative, the petitioner urged the Court to read down the provision to permit execution by less painful methods such as lethal injection or shooting.
The Legal Issue
The central question was whether Section 354(5) of the Code of Criminal Procedure, 1973 (corresponding to Section 393(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023), which prescribes hanging by the neck until death as the sole method of execution, violates Articles 14 and 21 of the Constitution of India, having regard to subsequent scientific developments, the Law Commission's 187th Report, and the availability of alternative methods such as lethal injection and shooting under military law.
Arguments Presented
For the Petitioner
Shri Rishi Malhotra, appearing in-person, submitted that hanging is barbaric, inhuman, and cruel, inflicting intense physical pain and psychological suffering. He relied on the Law Commission's 187th Report, which categorically observed that hanging involves "intense physical torture and pain," and detailed the procedure including weighing, measuring, and calculating the drop, with risks of strangulation (if drop too short) or decapitation (if drop too long). He invoked the ECOSOC Safeguard No. 9 requiring minimum possible suffering, and argued that the differential treatment under military statutes (Army Act, Air Force Act, Navy Act) permitting shooting as an alternative constitutes arbitrary discrimination under Article 14. He urged the Court to reconsider Deena in light of evolved constitutional standards under Gian Kaur v. State of Punjab (right to die with dignity) and to strike down or read down the provision to permit lethal injection or shooting.
For the Respondent
Shri R. Venkataramani, learned Attorney General, contended that the petition is not maintainable as it seeks judicial redesign of the penal framework, a function exclusively within Parliament's domain, citing A.K. Roy v. Union of India, Supreme Court Employees' Welfare Association v. Union of India, and Suresh Seth v. Commissioner, Indore Municipal Corporation. He argued that Deena (three-judge bench) and Shashi Nayar (Constitution Bench) have conclusively upheld hanging's constitutionality, and that Parliament's conscious retention of hanging in the BNSS, 2023, reaffirms this policy choice. He submitted that Article 21 does not require the State to adopt the best possible method, only that the method not be cruel, torturous, or degrading, and that no demonstrated, non-controversial standard exists for comparing execution methods. He further argued that military statutes operate in a distinct context, that Law Commission reports are recommendatory, and that the US experience with lethal injection reveals systemic concerns including venous access difficulties, drug shortages, and high botched execution rates, making it an unreliable benchmark.
The Court's Analysis
The Court began by acknowledging that the constitutional validity of Section 354(5) CrPC had been exhaustively examined by a three-judge bench in Deena v. Union of India and approved by a Constitution Bench in Shashi Nayar v. Union of India. The principle of stare decisis mandates that a bench of lesser strength should not depart from the ratio of a larger bench unless demonstrated that the earlier view has been rendered unconstitutional by significant constitutional development, legislative amendment, or cogent scientific and empirical evidence.
The Court noted that Deena had conducted a threadbare analysis of alternative methods - electrocution, lethal gas, shooting, and lethal injection - and concluded that none possessed any distinct or demonstrable advantage over hanging. The Court extensively quoted paragraphs 71 to 81 of Deena, which recorded that the State had discharged the heavy burden of proving that hanging does not violate Article 21: the system is easy to assemble, preliminaries are quick and simple, chances of accident are minimal, unconsciousness supervenes almost instantaneously, death follows from cervical dislocation, and the system avoids strangulation and decapitation while ensuring decency and decorum.
The Court found that neither the petitioner nor the impleader had placed any material capable of casting doubt on Deena's conclusions. The petitioner's reliance on the Law Commission's 187th Report was noted to be recommendatory in nature, and it was reasonably presumed that legislators had considered the report in its entirety and thought fit not to amend the mode of execution in the BNSS, 2023. The Court agreed with the Attorney General that the petitioner failed to demonstrate even a single instance of a botched execution in India under the existing framework, while the impleader's own material demonstrated numerous botched lethal injections in the United States.
Regarding the Article 14 challenge based on military statutes, the Court held that the Army Act, Air Force Act, and Navy Act operate in a distinct field governing a separate class of persons subject to military law, and cannot be relied upon to test the constitutional validity of provisions governing civilians under ordinary criminal law. The Court also noted that Deena had specifically evaluated shooting and rejected it as "an uncivilised method of extinguishing life" associated with military regimes that trample human rights.
The Court concluded that no compelling reason existed to refer Deena to a larger bench. However, it clarified that the dismissal does not foreclose future constitutional scrutiny should compelling scientific, medical, or empirical evidence emerge demonstrating that the factual basis of Deena has been materially displaced. The Court also observed that the Union Government remains free to undertake a comprehensive review through an expert body comprising specialists in law, forensic medicine, neuroscience, penology, and allied disciplines.
The Verdict
The Supreme Court dismissed the writ petition. The Court upheld the constitutional validity of Section 354(5) CrPC / Section 393(5) BNSS prescribing hanging as the mode of execution. It affirmed the binding precedent of Deena v. Union of India (three-judge bench) as approved by Shashi Nayar v. Union of India (Constitution Bench). The Court found no credible evidence of botched executions in India, no demonstrable superiority of lethal injection (citing US botched execution rate of approximately three percent), and held that the Law Commission's 187th Report is recommendatory. The Court left the door open for future review if compelling scientific evidence emerges and suggested the government may constitute an expert committee for policy review. No costs were awarded.
What This Means For Similar Cases
Binding Precedent Requires Compelling Evidence to Overturn
The judgment reinforces that a two-judge bench cannot overturn a three-judge bench decision affirmed by a Constitution Bench absent compelling constitutional, legislative, or scientific developments. Practitioners challenging settled execution-method jurisprudence must present unimpeachable empirical evidence of systemic failure in the Indian context, not merely academic propositions or foreign experience. The Court's insistence on "cogent scientific and empirical evidence" raises the evidentiary threshold significantly.
Legislative Policy Choice Insulated from Judicial Substitution
The Court emphatically rejected the invitation to judicially redesign the penal framework, affirming that the choice of execution method is a legislative policy decision. Parliament's conscious retention of hanging in the BNSS, 2023, with full awareness of the debate, constitutes a complete answer to constitutional challenges. Lawyers should note that Law Commission reports, however authoritative, remain recommendatory and their non-implementation is not judicially reviewable.
Foreign Experience Not a Reliable Benchmark
The Court declined to treat the United States' experience with lethal injection - including a documented botched execution rate of approximately three percent, venous access failures, drug shortages, and protocol uncertainties - as a valid benchmark for assessing Indian law. The scale and frequency of executions in the two jurisdictions are fundamentally different (eight executions in India between 2001-2023 versus over one thousand in the US). Practitioners must ground challenges in domestic empirical data, not foreign anecdotal evidence.
Door Open for Future Evidence-Based Review
While dismissing the petition, the Court explicitly stated that constitutional interpretation remains organic and responsive to advances in scientific knowledge. The suggestion that the government may constitute an expert body comprising legal, forensic, neuroscience, and penology specialists signals that a future evidence-based legislative review is the constitutionally appropriate path. Lawyers should monitor for any such executive initiative and be prepared to engage with its findings.
