No Reopening of Hanging as Mode of Execution Without Compelling New Scientific Evidence
Case Overview
Case: RISHI MALHOTRA v. UNION OF INDIA
Citation: 2026 INSC 873
Court: Supreme Court of India
Date: 18 August 2026
Introduction
This public interest litigation under Article 32 of the Constitution challenged the constitutional validity of
Section 354(5) of the Code of Criminal Procedure, 1973, corresponding to
Section 393(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023, insofar as it prescribes
hanging by the neck until death as the sole method of executing a death sentence under ordinary criminal law.
The petitioner, Rishi Malhotra, argued that hanging is cruel, barbaric, painful, degrading and violative of
Articles 14 and 21 of the Constitution. He sought recognition of a right to die by a dignified procedure and urged
that alternative methods such as lethal injection or shooting should be considered.
The Union of India opposed the petition, relying heavily on the binding authority of
Deena v. Union of India, where hanging had already been upheld as constitutionally valid.
Project 39A, National Law University, Delhi, intervened and placed scientific and comparative material before the Court,
including concerns about both hanging and lethal injection.
Summary of the Judgment
The Supreme Court dismissed the writ petition. The Court held that the constitutional validity of hanging had already
been settled by a three-Judge Bench in Deena v. Union of India, and that the present two-Judge Bench could not
depart from that ruling unless compelling new constitutional, legislative, scientific or empirical material justified
reconsideration.
The Court found that the petitioner had not produced unimpeachable scientific or empirical evidence demonstrating that
hanging had become constitutionally unacceptable or that lethal injection was demonstrably more humane. It also rejected
the Article 14 argument based on military statutes allowing execution by shooting, holding that military law operates in
a distinct field and governs a separate class of persons.
However, the Court clarified that future constitutional scrutiny is not foreclosed if compelling scientific or medical
evidence emerges. It also left open the possibility of the Union Government constituting an expert body to review the
mode of execution as a matter of policy.
Analysis
Precedents Cited
This case was cited as the starting point of Indian constitutional jurisprudence on capital punishment.
A Constitution Bench had held that the death penalty is not per se unconstitutional and does not violate Articles 14,
19 or 21 if imposed after a lawful trial with procedural safeguards. In the present case, it established the background
principle that the legitimacy of capital punishment itself was not under challenge.
The Court referred to this landmark decision for the “rarest of rare” doctrine. Bachan Singh v. State of Punjab
reaffirmed the constitutionality of the death penalty but confined its imposition to exceptional cases where life
imprisonment is unquestionably inadequate. The petitioner relied on Justice Bhagwati’s dissenting observations regarding
the suffering associated with hanging, but the Court noted that the validity of hanging had later been directly examined
in Deena v. Union of India.
This was the central precedent. In Deena v. Union of India, a three-Judge Bench upheld hanging as a valid mode
of execution under Section 354(5) CrPC. The Court in the present case treated Deena as binding and emphasized
that it had considered comparative methods such as electrocution, lethal gas, shooting and lethal injection, and found
no method demonstrably superior to hanging.
The present Bench held that, without strong new evidence displacing the factual basis of Deena, it could not
refer the matter to a larger Bench or depart from the earlier ruling.
The petitioner relied on this case for the proposition that Article 21 includes dignity at the end of life.
The judgment recognized that the right to life includes the right to live with dignity up to natural death.
While the Court accepted the broader importance of dignity, it did not accept that this principle automatically rendered
hanging unconstitutional.
This case was cited by the impleader for the principle that execution must lead to immediate unconsciousness and quick
death without mutilation. The Court noted the argument but ultimately held that the materials placed on record were not
sufficient to dislodge Deena v. Union of India.
Baze v. Rees
This United States Supreme Court decision was cited in relation to lethal injection. It showed that even lethal injection
does not guarantee a painless death. The Court used this comparative material to reject the petitioner’s claim that
lethal injection is clearly superior to hanging.
These cases were cited by the Union of India to argue that courts cannot direct Parliament to enact a particular law or
substitute legislative policy with judicial preference. They supported the separation of powers argument.
Union of India v. Deoki Nandan Aggarwal
This precedent was cited for the principle that courts cannot rewrite, recast or reframe legislation. It reinforced the
Court’s reluctance to judicially substitute hanging with another method of execution.
Asif Hameed v. State of J&K and Aravali Golf Club v. Chander Hass
These cases were relied on to emphasize judicial restraint in matters of policy. The mode of execution, unless shown to
violate constitutional limits, was treated as a matter falling primarily within legislative and executive domains.
This case was crucial because the Court noted that Deena v. Union of India had been considered and approved by
a Constitution Bench in Shashi Nayar (Smt) v. Union of India. This made the binding force of Deena
even stronger and narrowed the scope for interference by the present two-Judge Bench.
Legal Reasoning
The Court’s reasoning rested on three main foundations:
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Stare decisis: A two-Judge Bench cannot depart from a three-Judge Bench decision, especially one
subsequently approved by a Constitution Bench, unless there is a compelling reason.
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Evidentiary insufficiency: The petitioner did not produce decisive scientific or empirical evidence
showing that hanging is now constitutionally impermissible or that any alternative is clearly more humane.
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Separation of powers: The Court declined to substitute its own policy preference for Parliament’s
decision, particularly after Parliament retained hanging in the BNSS.
The Court also rejected the argument that military statutes permitting shooting created unconstitutional discrimination.
It held that military law governs a distinct category of persons and cannot be used to invalidate the civilian statutory
framework.
Impact of the Judgment
The judgment preserves the existing legal position: hanging remains the lawful mode of execution for civilian death
sentences in India. It also sets a high threshold for reopening settled constitutional questions concerning methods of
execution. Future challenges must be supported by compelling scientific, medical or empirical evidence.
At the same time, the judgment does not permanently close the debate. The Court expressly stated that constitutional
interpretation is organic and may respond to future scientific developments. This leaves room for legislative reform or
a future constitutional challenge based on stronger evidence.
Complex Concepts Simplified
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Article 21: Protects life and personal liberty. It requires that any deprivation of life must follow
a just, fair and reasonable procedure.
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Stare decisis: A rule that courts should follow earlier binding decisions to maintain legal certainty.
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Rarest of rare doctrine: Death penalty can be imposed only in the most exceptional cases.
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Separation of powers: Courts interpret and apply law; legislatures make policy choices unless they
violate the Constitution.
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Botched execution: An execution that fails or causes unintended prolonged suffering.
Conclusion
The Supreme Court reaffirmed that hanging remains constitutionally valid as the mode of execution under Section 354(5)
CrPC and Section 393(5) BNSS, primarily because Deena v. Union of India continues to bind the Court and no
compelling new evidence justified reconsideration.
The key takeaway is not that hanging is beyond constitutional review forever, but that any future challenge must be
grounded in strong scientific and empirical material. The judgment therefore balances deference to precedent and
legislative policy with a limited openness to future constitutional evolution.