Supreme Court declines to reconsider hanging as sole mode of execution

A two-judge Bench dismissed Rishi Malhotra’s challenge to Section 354(5) CrPC, holding no material justified doubting the three-judge decision in Deena upholding execution by hanging.

The Supreme Court has refused to strike down or reconsider hanging by the neck as the only prescribed method of executing a death sentence under Indian criminal law. A Bench of Justice Vikram Nath and Justice Sandeep Mehta dismissed a public interest writ petition filed under Article 32 by Rishi Malhotra, who challenged Section 354(5) of the Code of Criminal Procedure, 1973 (now Section 393(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023) as violating Articles 14 and 21.

The Court held that the constitutional validity of hanging had already been settled by a three-judge Bench in Deena v. Union of India, later approved by a Constitution Bench in Shashi Nayar v. Union of India. On that basis, a two-judge Bench found the scope for interference “extremely limited” and declined to refer the question to a larger Bench.

How the challenge reached the Court

Malhotra, appearing as petitioner-in-person, sought a declaration that Section 354(5) CrPC is ultra vires the Constitution and that the right to die by a dignified procedure of death is a fundamental right under Article 21. The petition invoked the Constitution Bench ruling in Gian Kaur v. State of Punjab.

The petition was first taken up on 6 October 2017. While issuing notice, the Court observed that the Constitution is a living instrument and that a provision once upheld may require reconsideration in light of scientific and social developments. It referred to the dissenting opinion of Justice Bhagwati in Bachan Singh v. State of Punjab on the suffering associated with hanging, and asked the Union to explore more humane alternatives.

In an order dated 2 May 2023, Attorney General R. Venkataramani told the Court that the Government was considering constituting an expert committee. The judgment records that no further update on any such committee was provided, and the Union’s written submissions gave no indication that one had been set up.

The Court traced the statutory history of the method. The Code of Criminal Procedure, 1861 first fixed hanging by the neck as the sole method, using the long-drop technique. The prescription continued through the Codes of 1882 and 1898, was reproduced in the 1973 CrPC, and has been retained in the BNSS — leaving the mechanism unchanged for over a century and a half.

Arguments on the method’s cruelty and its alternatives

Malhotra argued that hanging is barbaric, inhumane and cruel, relying on the 187th Report of the Law Commission of India (October 2003), which observed that hanging is “accompanied by intense physical torture and pain”. He pointed to the risk of strangulation where the drop is too short and decapitation where it is too long, and cited State Jail Manual provisions, including the Punjab and Haryana Jail Manual, describing the prolonged agony before execution.

He relied on ECOSOC Safeguard No. 9, which requires the minimum possible suffering, and on the availability of shooting as an alternative under the Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1957, contending that denying that option to civilians offends Article 14. He asked the Court to strike down the provision or read it down to permit lethal injection or shooting.

Ms. Meenakshi Arora, senior counsel for impleader Project 39A, National Law University, Delhi, submitted that Deena proceeded on a limited evidentiary basis. She placed a 1992 post-exhumation study of 34 persons executed in England between 1882 and 1945, noting the typical hangman’s fracture appeared in only three cases and death occurred by asphyxiation in six. She also cited the risks of lethal injection, including botched executions in the United States, the three-drug protocol’s concerns, and the 2024 attempt to execute Thomas Creech in Idaho, where the team failed eight times over two hours to insert a catheter.

The Attorney General opposed the petition as non-maintainable, arguing that the reliefs amounted to inviting the Court to redesign the penal framework, a function of Parliament. He relied on A.K. Roy, Supreme Court Employees’ Welfare Association, Suresh Seth and Deoki Nandan Aggarwal. He submitted that Deena had upheld Section 354(5), that Parliament had consciously retained hanging in the BNSS, and that India carried out only eight executions between 2001 and 2023 against over a thousand in the United States.

The reasoning: stare decisis and absence of new evidence

The Court applied the principle of stare decisis, holding that a smaller Bench should not depart from the ratio of a larger Bench that has withstood the test of time for more than four decades. It said departure would require a significant constitutional development, legislative amendment or cogent scientific and empirical evidence.

The Bench recorded that Deena had exhaustively examined electrocution, lethal gas, shooting and lethal injection, concluding none possessed any distinct or demonstrable advantage over hanging. It quoted Deena’s finding that unconsciousness supervenes almost instantaneously and that the method involves no barbarity or degradation.

On the evidence before it, the Court found that Malhotra’s claim of pain was not supported by any unimpeachable scientific or empirical material, while the impleader’s own material underscored the uncertainties of lethal injection. There was, the Court said, no concrete scientific material to show lethal injection is demonstrably superior or more humane.

The military-statute argument was rejected as irrelevant, since those enactments operate in a distinct field governing persons subject to military law. The Court treated the 187th Report as recommendatory, presuming the legislature considered it and chose not to alter the mode of execution in the BNSS. It also accepted that no single instance of a botched execution in India had been demonstrated.

Order

The Court held that no case was made out for referring Deena to a larger Bench and dismissed the writ petition. It clarified that the dismissal does not foreclose future constitutional scrutiny should compelling scientific, medical or empirical evidence emerge displacing the basis of Deena.

The Bench observed that nothing in the judgment precludes the Union Government from undertaking a comprehensive review of the method of execution through an expert body of specialists in law, forensic medicine, neuroscience, penology and allied disciplines, as a matter of policy. Pending applications were disposed of.