2026 INSC 873 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

RISHI MALHOTRA & ANR. ….PETITIONER(S)

VERSUS

UNION OF INDIA ….RESPONDENT(S)

J U D G M E N T

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, 1973

1 (Corresponding to Section 393(5) of

the Bhartiya Nagarika Suraksha Sanhita, 2023

2)

insofar as it prescribes hanging as the sole method of

1

For short, “CrPC”.

2

For short, “BNSS”.

2

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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);

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

3

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 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

3

(1973) 1 SCC 20.

4

(1980) 2 SCC 684.

5

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 Code, 1860, provided

the legal authority to impose death penalty, it was the

Code of Criminal Procedure, 1861

5, 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 1882

6 and 1898

7. Even

after independence, when the Code of Criminal

Procedure, 1973 was enacted as a comprehensive

5

See section 53.

6

See section 368.

7

See section 368.

7

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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, 2023

8, 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

8

See section 393(5)

8

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 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

9

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

these standards, and that the margin for error was

considerable.

16. Similarly, the Law Commission of India, in its

35

th 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,

9

(1983) 4 SCC 645.

10

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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.

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

11

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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.

10

(1996) 2 SCC 648

12

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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.

22. It was in this broader constitutional context

that the writ petition was first taken up for

consideration on 6

th 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

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 2

nd 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.

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 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

15

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 187

th 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

16

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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

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

17

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

the prolonged agony and psychological t rauma

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,

18

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 contended that a provision rooted in

19

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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

20

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 India

11, 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

11

(2015) 6 SCC 702.

21

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

individuals executed in England 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

22

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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

23

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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.

36. She further contended, that the Law

Commission of India in its 187

th 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. Rees

12, wherein it was held that lethal injection did

12

553 U.S. 35 (2008)

24

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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

25

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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, 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

26

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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

India

13, Supreme Court Employees’ Welfare

Association v. Union of India

14, and Suresh Seth

v. Commissioner, Indore Municipal

Corporation

15, in support of this submission.

39. He further submitted that the petition er

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

13

(1982) 1 SCC 271.

14

(1989) 4 SCC 187.

15

(2005) 13 SCC 287.

27

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 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.

28

WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 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

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 187

th 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

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 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

16

1992 Supp (1) SCC 323.

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

upon judgments of this Court in Asif Hameed v.

State of J&K

17, 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.

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.

17

1989 Supp (2) SCC 364.

18

(2008) 1 SCC 683.

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 India

19. Hence, the

scope of interference by this Court becomes even

more restricted.

19

(1992) 1 SCC 96.

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 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

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 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

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 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:

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

“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 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,

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 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

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 appe ar 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 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

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 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

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 i s

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

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 (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

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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 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

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WRIT PETITION (CRIMINAL) NO. 145 OF 2017

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.

……………………..J.

(VIKRAM NATH)

………………… …..J.

(SANDEEP MEHTA)

NEW DELHI;

AUGUST 18, 2026.