Supreme Court: While deliberating over this writ petition challenging the constitutionality of Section 354(5), Criminal Procedure Code, 1973 (CrPC) insofar as it prescribes hanging as the sole method of execution, the Division Bench of Vikram Nath and Sandeep Mehta*, JJ., declined to refer Deena v. Union of India, (1983) 4 SCC 645, decided by three-Judge Bench of the Supreme Court, to a larger Bench for reconsideration of the Constitutional validity of Section 354(5) CrPC [corresponding to Section 393(5), Nagarik Suraksha Sanhita, 2023 (BNSS)].
The Court deemed it necessary to clarify that dismissal of the present writ petition on this subject should not be understood as foreclosing future constitutional scrutiny, should compelling scientific, medical or empirical evidence emerge demonstrating that ratio in Deena can be 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.”
Background, core issue and relief sought by the petitioner
When a Court, upon due adjudication, imposes a death sentence 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. The validity of death penalty has been subject intense judicial scrutiny. Cases such as Jagmohan Singh v. State of U.P., (1973) 1 SCC 20; Bachan Singh v. State of Punjab, (1980) 2 SCC 684 had examined the validity of death penalty through constitutional prism.
However, the Court noted that even though the legality of death penalty itself has been 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. Hence, the core issue presented by this writ petition revolved around whether the only prescribed method of execution in CrPC/BNSS conforms to the mandate of just, fair, and reasonable.
The institutional examinations vis-à-vis modes of executing death sentence and constitutionality of Section 354(5) CrPC was contemplated by a three-Judge Bench of the Court in Deena. Therein the Court had upheld the constitutional validity of hanging as mode of execution relying 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 4 decades, Deena 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.
The petitioner however contended that the core issue cannot be examined solely based on the position as it stood when Deena was decided as 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.
Hence the petitioner sought the following reliefs:
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Declare provisions contained under Section 354(5) CrPC to be ultra vires the Constitution and especially in contravention of Article 21 and also in contravention of the Constitution Bench judgment in Gian Kaur v. State of Punjab, (1996) 2 SCC 648.
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Declare right to die by a dignified procedure of death is a fundamental right as defined under Article 21 of the Constitution.
Contentions
The petitioner-in-person contended that sole method prescribed under Section 354(5) CrPC/Section 393(5) BNSS, i.e. execution by hanging by the neck until death, is barbaric, inhumane and cruel, and cannot withstand constitutional scrutiny under Articles 14 and 21 of the Constitution. He further submitted that the uncertainties inherent in the method compound its inhumanity. 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. The petitioner urged that the time has come for reconsideration of the ratio expounded in Deena, in light of the relevant findings of the 187th Report of Law Commission of India, evolution of constitutional standards under Article 21 of the Constitution, growing international consensus on minimum requirements for humane execution, and the documented evidence of the physical and psychological suffering caused by hanging.
Counsel representing Project 39A, National Law University, Delhi (impleader) 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. Execution by hanging as prescribed under Section 354(5) CrPC violates Article 21 in 3 ways-hanging is not quick, entire procedure leading up to the moment of execution inflicts tremendous psychological suffering and humiliation and outcomes of hanging are unpredictable and uncontrolled. The impleader further argued in favour of administering lethal injection as method of executing death sentence.
Per contra, counsel for the respondent challenged the maintainability of the writ petition stating that 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 the Court to redesign the penal framework, which is a function exclusively within the legislative domain. It was further submitted that Article 21 of the Constitution 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.
A distinction was also drawn based on scale: while India carried out only eight executions between 2001 and 2023, the United States conducted over one thousand executions during the corresponding period, making the American experience an unreliable benchmark for assessing India’s statutory framework.
The impleader relied on a 1992 post-exhumation study of 34 individuals executed in England between 1882 and 1945, which found that while fracture of the C2-C3 vertebrae was present in ninety percent of cases, the classic “hangman’s fracture” occurred in only three instances, with six deaths resulting from asphyxiation or strangulation rather than cervical fracture. She also cited the February 2024 attempt to execute Thomas Creech in Idaho, where the execution team failed eight times over two hours to establish a functioning intravenous line before the execution was called off.
Court’s assessment
Perusing the petition, the Court at the outset pointed out that constitutional validity of Section 354(5) CrPC insofar as it prescribes hanging as the only mode of execution of death sentence has already been examined and settled in Deena by a three-Judge Bench; hence, the scope of interference by a Division Bench of two Judges on the very same issue is extremely limited. The Court explained that the rule 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 4 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.”
The Court pointed out that Deena exhaustively considered the entire scope and ambit of hanging as the mode of execution of death sentence with reference to foreign precedents, expert opinions and other scientific materials then available before the Court. Moreover, Deena was considered and approved by the Constitution Bench of the Court in Shashi Nayar v. Union of India, (1992) 1 SCC 96 which further limits the Court’s interference.
Taking note of the petitioner’s emphasis on hanging being physically painful and physiologically traumatic, the Court pointed out that such argument was not supported by any unimpeachable scientific or empirical evidence.
Further taking note of the impleader’s contention regarding administering of lethal injection, it was stated that 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 Court found merit in the respondent’s contention that in the United States of America, several instances of botched executions via lethal injection had emerged casting doubt in the effectiveness of this method.
The Court further stated that argument related to death by shooting as an alternate mode of execution vide the Army Act, 1950, the Air Force Act, 1950, the Navy Act, 1957 is irrelevant and unconvincing because the abovementioned statutes operate in a distinct field and govern a separate class of persons subject to military law. The Court explained that the three-Judge Bench in Deena 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 therein concluded that none of these methods possessed any distinct or demonstrable advantage over hanging.
The Court pointed out that the three-Judge Bench in Deena upon a threadbare analysis of the scientific material and a wholesome consideration of the mechanism of the system of hanging, had held that the preliminary procedures are simple and quick; the chances of accident during hanging are minimal and; satisfied the constitutional obligation of the State under Article 21 to ensure that the sentence is carried out with decency, dignity and without unnecessary brutality.
Decision
Therefore, upon perusal of the contentions raised by the parties, the Court found that the petitioner and the impleader could not place on record any material capable of casting doubt upon the view so expressed in Deena. The Court stated that the petitioner failed to place any material which would justify doubting the correctness of view taken in Deena or to demonstrate that the views expressed in the precedent has lost its efficacy or stands diluted by subsequent constitutional, scientific or empirical developments.
Hence, no compelling reason was found by the Court to refer the three-Judge Bench verdict in Deena to a larger Bench.
The Court further observed and clarified that this judgment does not prevent the Union Government from future consideration and 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 objectives.
[Rishi Malhotra v. Union of India, 2026 SCC OnLine SC 1602, decided on 18-8-2026]
*Judgment by Justice Sandeep Mehta
Advocates who appeared in this case:
Mr. Rishi Malhotra, Sr. Adv., Ms. Ansuiya, Adv., Mr. Shivaansh Maini, Adv., Mr. Prem Malhotra, AOR, Ms. Shreya Rastogi, Adv., Ms. Moulika Diwakar, Adv., Ms. Prerna Priyadarshini, AOR, Mr. Kush Chaturvedi, Adv., Mr. Syed Faraz Alam, Adv., Ms. Ayesha Choudhary, Adv., Mr. Pramothesh Mukherjee, Adv., Ms. Sonali Kumari, Adv., Ms. Ishita Singh Tomar, Adv., For Petitioner(s)
Mr. R Venkataramani, Attorney General for India, Mr. Tushar Mehta, Solicitor General, Ms. Sonia Mathur, Sr. Adv., Ms. Shradha Deshmukh, Adv., Mr. Kanu Agarwal, Adv., Mr. Mayank Pandey, Adv., Mr. Chitvan Singhal, Adv., Mr. Abhishek Kumar Pandey, Adv., Ms. Ameyavikrama Thanvi, Adv., Mr. Raman Yadav, Adv., Mr. Arvind Kumar Sharma, AOR, For Respondent(s)
