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REPORTABLE JUDGMENT · STRUCTURED SUMMARY

Supreme Court Refuses to Reopen Hanging Precedent, Dismisses Article 21 Challenge but Leaves Future Scientific Review Open

The Supreme Court dismissed Rishi Malhotra’s challenge to hanging as the sole civilian method of execution, holding that no compelling scientific or empirical material justified reopening Deena v. Union of India and that…

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2026-08-18 — Rishi Malhotra & Anr. v. Union of India

Published 21 August 202613 min readAutomatically processed

The Supreme Court dismissed Rishi Malhotra’s challenge to hanging as the sole civilian method of execution, holding that no compelling scientific or empirical material justified reopening Deena v. Union of India and that lethal injection had not been shown to be more humane. The Bench nevertheless left future constitutional scrutiny open and said the Union may undertake a multidisciplinary expert review.

CASE DETAILS

CaseRishi Malhotra & Anr. v. Union of India
Neutral citation2026 INSC 873
Case numbersWrit Petition (Criminal) No. 145 of 2017
Diary numbersDiary No. 29088 of 2017
Judgment date2026-08-18
CourtSupreme Court of India
JurisdictionCriminal Original Jurisdiction
Case typePublic-interest writ petition under Article 32 challenging the constitutionality of hanging as the sole civilian method of execution of a death sentence
PlaceNew Delhi
DispositionThe writ petition was dismissed. The Court declined to refer Deena v. Union of India to a larger Bench, found no credible record showing that lethal injection or another method was demonstrably superior to hanging, but left future constitutional scrutiny and an optional Union-led expert review open.

BENCH

Coram: Justice Vikram Nath, Justice Sandeep Mehta. Opinion authored by: Justice Sandeep Mehta.

WHAT THE SUPREME COURT HELD

  • A two-Judge Bench could not depart from or refer for reconsideration the three-Judge ruling in Deena v. Union of India merely because a different mode of execution was asserted to be preferable; a compelling constitutional, legislative, scientific or empirical displacement of that precedent had to be shown. [1] (paras 48-51, 60, 63; PDF pp. 33-35, 44-46)
  • The petitioners did not place unimpeachable scientific or empirical material showing that hanging, as examined in Deena, had become constitutionally indefensible or that lethal injection was demonstrably superior or more humane. [1] (paras 53-54, 59-62; PDF pp. 35-36, 43-45)
  • The availability of shooting under military statutes did not establish unconstitutional discrimination because military laws operate in a distinct field and govern a separate class of persons subject to military law. [1] (paras 55-56; PDF pp. 36)
  • The 187th Law Commission Report was recommendatory and did not itself invalidate the statutory choice retained by Parliament in Section 393(5) of the BNSS. [1] (paras 61; PDF pp. 44-45)
  • The Court dismissed the writ petition and declined to refer Deena to a larger Bench, while expressly leaving future constitutional scrutiny open if compelling new evidence emerges. [1] (paras 63-66; PDF pp. 45-47)

BACKGROUND

  • The public-interest writ petition under Article 32 challenged Section 354(5) CrPC, corresponding to Section 393(5) BNSS, insofar as it prescribes hanging by the neck as the sole method of executing a death sentence. [1] (paras 2; PDF pp. 1-2)
  • The petition sought a declaration that the provision violated Articles 14 and 21 and a declaration that a dignified procedure of death is protected by Article 21. [1] (paras 2; PDF pp. 1-2)
  • Indian criminal procedure first adopted hanging as the uniform statutory method in the Code of Criminal Procedure, 1861; the prescription continued through later Codes, the 1973 CrPC and the 2023 BNSS. [1] (paras 9-12; PDF pp. 5-7)
  • The constitutional validity of hanging had previously been upheld in Deena v. Union of India, and that ruling was later approved by a Constitution Bench in Shashi Nayar v. Union of India. [1] (paras 17, 48-51; PDF pp. 9-10, 33-35)
  • The judgment situated the challenge within the Article 21 requirement of dignity, including the principle that constitutional protection does not cease to apply to prisoners on death row. [1] (paras 20-21; PDF pp. 11-12)
  • In 2017, while issuing notice, the Court observed that constitutional perspectives may evolve and asked the Union to explore more humane and less painful alternatives. [1] (paras 22-23; PDF pp. 12-13)

Procedural history

  • The writ petition was instituted in 2017 as a public-interest action under Article 32. [1] (paras 2; PDF pp. 1-2)
  • On 6 October 2017, the Court issued notice and recorded a prima facie concern that the legislature might consider alternatives avoiding unnecessary pain and suffering. [1] (paras 22; PDF pp. 12-13)
  • On 2 May 2023, the Attorney General informed the Court that the Government was considering constitution of an expert committee, but the final judgment recorded that no further update or indication of an actually constituted committee had been provided. [1] (paras 23-24; PDF pp. 13-14)
  • The Court ultimately heard Rishi Malhotra in person, the Attorney General for the Union, and senior counsel for Project 39A on the merits. [1] (paras 25; PDF pp. 14)

ISSUES BEFORE THE COURT

  • Whether prescribing hanging as the sole civilian method of execution under Section 354(5) CrPC and Section 393(5) BNSS violates Articles 14 and 21. [1] (paras 2, 7, 35; PDF pp. 1-2, 5, 22-23)
  • Whether later constitutional developments and scientific or empirical material justified referring Deena to a larger Bench for reconsideration. [1] (paras 18-21, 31, 48-51, 63; PDF pp. 10-12, 18-19, 33-35, 45-46)
  • Whether lethal injection, shooting or another method had been shown to be less painful, more reliable and constitutionally preferable to hanging. [1] (paras 32, 36-37, 42, 53-57, 62; PDF pp. 19, 23-25, 28-30, 35-37, 45)
  • Whether the military statutes permitting shooting as an alternative mode rendered the civilian-law prescription discriminatory under Article 14. [1] (paras 30, 43, 55-56; PDF pp. 17-18, 29-30, 36)

PARTIES’ ARGUMENTS

Petitioners — challenge to hanging

Rishi Malhotra & Anr.

  • The petitioner submitted that hanging is barbaric, inhuman and cruel, inflicts intense pain and psychological trauma, and violates Articles 14 and 21. [1] (paras 26-28; PDF pp. 14-17)
  • He relied on the 187th Law Commission Report, jail-manual procedures and the risks of strangulation or decapitation to argue that hanging is uncertain and incompatible with dignity. [1] (paras 27-28; PDF pp. 15-17)
  • He invoked ECOSOC safeguards requiring minimum possible suffering and argued that international standards inform Article 21. [1] (paras 29; PDF pp. 17)
  • He argued that military laws allow shooting and that denying civilians an alternative mode was arbitrary under Article 14. [1] (paras 30; PDF pp. 17-18)
  • He sought either striking down the provision or reading it down to permit alternatives including lethal injection or shooting. [1] (paras 31-32; PDF pp. 18-19)
Impleader — Project 39A, NLU Delhi

Project 39A, National Law University Delhi

  • Project 39A submitted that Deena had proceeded on a limited evidentiary basis and that later medical and scientific literature cast doubt on the assumption that hanging is instantaneous and pain-free. [1] (paras 33-35; PDF pp. 19-23)
  • The impleader relied on post-exhumation studies and execution accounts to argue that hanging can cause strangulation, decapitation or prolonged suffering and is unpredictable. [1] (paras 34-35; PDF pp. 20-23)
  • At the same time, Project 39A placed material showing serious practical failures and botched executions associated with lethal injection in the United States, urging that any alternative also undergo rigorous scrutiny. [1] (paras 36-37; PDF pp. 23-25)
Respondent — Union of India

Union of India

  • The Union argued that the petition effectively invited judicial redesign of a legislative penal framework and that courts cannot direct Parliament to enact or adopt a particular policy. [1] (paras 38; PDF pp. 25-26)
  • It submitted that Deena had already upheld hanging under Article 21 and that Parliament consciously retained the same prescription in Section 393(5) BNSS. [1] (paras 40-41; PDF pp. 26-27)
  • The Union contended that no alternative method had been demonstrated to provide a reliable and non-controversial constitutional benchmark and that Article 21 does not give a condemned prisoner a choice of method. [1] (paras 42; PDF pp. 28-29)
  • It argued that military enactments govern a distinct class and field, so their provision for shooting did not create hostile discrimination against civilians. [1] (paras 43; PDF pp. 29-30)
  • It maintained that Law Commission reports are recommendatory, foreign experience with lethal injection was not a reliable benchmark, no botched Indian hanging had been demonstrated, and the mode of execution is principally a matter of legislative and penological policy. [1] (paras 44-47; PDF pp. 30-33)

COURT'S ANALYSIS AND REASONING

Binding effect of Deena and the limits of a two-Judge Bench

  • The Court began from the premise that Deena, a three-Judge decision, had already settled the constitutional validity of hanging and had been approved in Shashi Nayar by a Constitution Bench. [1] (paras 48-51; PDF pp. 33-35)
  • Stare decisis required more than disagreement: a smaller Bench needed a significant constitutional development, legislative amendment or cogent scientific and empirical evidence displacing the earlier foundation. [1] (paras 49; PDF pp. 34)
  • Because the larger-Bench precedent had stood for over four decades and received Constitution Bench approval, the scope for reference or departure was especially narrow. [1] (paras 49-52; PDF pp. 34-35)

Scientific record did not establish a superior alternative

  • The petitioner’s assertion that hanging is physically painful and psychologically traumatic was not supported by unimpeachable scientific or empirical evidence sufficient to unsettle Deena. [1] (paras 53, 59-60; PDF pp. 35, 43-44)
  • Project 39A’s evidence about failed lethal injections underscored that alternative methods also involve uncertainty and practical difficulty. [1] (paras 54; PDF pp. 35-36)
  • The Court therefore found no concrete material demonstrating that lethal injection is more humane or has an added advantage over hanging. [1] (paras 54, 57-62; PDF pp. 35-45)

Military statutes did not create an Article 14 comparator

  • The Army, Air Force and Navy enactments operate in a distinct legal field and govern persons subject to military law. [1] (paras 55-56; PDF pp. 36)
  • Their recognition of shooting as an alternative could not be used to test the constitutional validity of the method prescribed for civilians under ordinary criminal law. [1] (paras 56; PDF pp. 36)

Law Commission recommendation and legislative choice

  • The Court treated the 187th Law Commission Report as recommendatory rather than legally determinative. [1] (paras 61; PDF pp. 44-45)
  • The retention of hanging in the newly enacted BNSS was treated as a legislative choice that did not support judicial invalidation on the existing record. [1] (paras 41, 61; PDF pp. 27, 44-45)

Future constitutional and policy review remains possible

  • The Court clarified that dismissal would not foreclose renewed constitutional scrutiny if compelling new scientific, medical or empirical evidence materially displaced Deena’s factual basis. [1] (paras 64; PDF pp. 46)
  • It also stated that the Union may, as a matter of policy, undertake a multidisciplinary expert review of alternative methods aimed at minimising unnecessary pain and preserving dignity. [1] (paras 65; PDF pp. 46-47)

RATIO DECIDENDI

  • A smaller Bench should not refer or depart from a long-standing larger-Bench constitutional precedent unless significant doctrinal, legislative, scientific or empirical developments demonstrably displace its foundation. [1] (paras 48-51, 60, 63; PDF pp. 33-35, 44-46)
  • On the record before the Court, Section 354(5) CrPC and Section 393(5) BNSS could not be invalidated merely by asserting that another execution method is more humane; the proposed alternative had to be supported by credible comparative evidence. [1] (paras 53-62; PDF pp. 35-45)
  • A method allowed under special military legislation does not furnish an Article 14 comparator for civilians where the statutes operate in a distinct field and govern a separate legal class. [1] (paras 55-56; PDF pp. 36)

OBITER / IMPORTANT CASE-SPECIFIC OBSERVATIONS

No separate material obiter was identified. The Court nevertheless made important case-specific, non-mandatory observations preserving the possibility of future constitutional scrutiny and executive-legislative review.

  • Future scrutiny remains open if compelling scientific, medical or empirical evidence later displaces the factual basis of Deena. [1] (paras 64; PDF pp. 46)
  • The Union may consider a multidisciplinary expert review of whether another execution method better minimises unnecessary pain while preserving the dignity of the condemned prisoner. [1] (paras 65; PDF pp. 46-47)

FINAL RULING AND DIRECTIONS

  • The Court declined to refer Deena v. Union of India to a larger Bench for reconsideration. [1] (paras 63; PDF pp. 45-46)
  • The dismissal does not foreclose future constitutional scrutiny if compelling scientific, medical or empirical evidence materially displaces the basis of Deena. [1] (paras 64; PDF pp. 46)
  • The Union Government may, if it considers appropriate, undertake a comprehensive multidisciplinary expert review of the existing method of execution as a matter of policy. [1] (paras 65; PDF pp. 46-47)
  • The writ petition was dismissed with the stated observations. [1] (paras 66; PDF pp. 47)
  • Pending application(s), if any, were disposed of. [1] (paras 67; PDF pp. 47)

STATUTES INVOLVED

InstrumentProvisionsRelevance
Constitution of IndiaArticles 14, 21 and 32Articles 14 and 21 supplied the equality and dignity standards for the challenge; Article 32 was the jurisdictional basis of the PIL. [1]
Code of Criminal ProcedureSection 354(5)The challenged provision prescribed that a person sentenced to death be hanged by the neck till dead. [1]
Bharatiya Nagarik Suraksha SanhitaSection 393(5)The successor provision retained hanging as the statutory mode of execution. [1] [3]
Army ActRelied on by the petitioner as military legislation permitting shooting as an alternative mode; the Court held the military field was distinct. [1]
Air Force ActRelied on with other military statutes for the Article 14 comparison rejected by the Court. [1]
Navy ActRelied on with other military statutes for the Article 14 comparison rejected by the Court. [1]
ECOSOC Safeguards Guaranteeing Protection of the Rights of Those Facing the Death PenaltySafeguard 9Cited by the petitioner for the principle that capital punishment should inflict minimum possible suffering. [1]

KEY PRECEDENTS AND THEIR TREATMENT

Precedent & CitationTreatmentPrinciple/Application
Deena v. Union of India, (1983) 4 SCC 645binding_followedThe controlling three-Judge precedent upheld hanging under Article 21 after comparing alternative methods; the present Court found no basis to doubt or refer it. [1]
Shashi Nayar (Smt) v. Union of India, (1992) 1 SCC 96approvedThe judgment noted that a Constitution Bench had considered and approved Deena, further narrowing the scope for a two-Judge Bench to interfere. [1]
Bachan Singh v. State of Punjab, (1980) 2 SCC 684background_onlyReferred to for the constitutionality of the death penalty and the rarest-of-rare doctrine; the 2017 notice order also referenced Justice Bhagwati’s dissent on suffering. [1]
Gian Kaur v. State of Punjab, (1996) 2 SCC 648referred_with_approvalUsed to frame Article 21 as protecting dignity up to the end of life; the petitioner also relied on it in seeking a dignified procedure of death. [1]
Shabnam v. Union of India, (2015) 6 SCC 702cited_in_submissionsProject 39A relied on it for the standard that execution should bring immediate unconsciousness and rapid death without mutilation. [1]
Baze v. Rees, 553 U.S. 35 (2008)cited_in_submissionsProject 39A cited it while explaining that lethal injection does not guarantee a painless death. [1]
Union of India v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323cited_in_submissionsThe Union cited it for the rule that courts cannot rewrite, recast or reframe legislation. [1]
Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364cited_in_submissionsThe Union relied on it for judicial restraint in matters of policy and separation of powers. [1]
Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683cited_in_submissionsCited with Asif Hameed to argue that the mode of execution is a policy choice for the legislature and executive. [1]

LEGAL SIGNIFICANCE

  • The judgment reinforces the institutional discipline of stare decisis where a two-Judge Bench is asked to reopen a long-standing three-Judge constitutional ruling later approved by a Constitution Bench. [1] (paras 48-52, 60, 63; PDF pp. 33-35, 44-46)
  • It establishes that a constitutional challenge to a method of execution must be supported by credible comparative scientific and empirical material, not merely by the assertion that another method appears more humane. [1] (paras 53-62; PDF pp. 35-45)
  • The Court preserved an evidence-sensitive path for future review and expressly recognised space for a multidisciplinary executive-legislative assessment of execution methods. [1] (paras 64-65; PDF pp. 46-47)

PRACTICAL IMPACT — EDITORIAL ANALYSIS

  • For future litigants, a renewed challenge will require a materially stronger scientific and empirical record capable of displacing the assumptions accepted in Deena, including reliable Indian or comparative evidence about pain, failure rates and operational safeguards. [1] (paras 49, 53-60, 64; PDF pp. 34-44, 46)
  • For policymakers, the judgment leaves open a structured expert review involving law, forensic medicine, neuroscience and penology, but makes clear that any alternative must itself be tested for reliability, pain and dignity rather than assumed to be superior. [1] (paras 54, 62, 65; PDF pp. 35-36, 45-47)

SOURCE CITATIONS & ILI-STYLE BIBLIOGRAPHY

[1] Rishi Malhotra & Anr. v. Union of India, 2026 INSC 873 (Supreme Court of India, decided on 18 August 2026). Open source

[2] Amisha Shrivastava, “Supreme Court Dismisses Plea To Abolish Hanging As Method To Execute Death Penalty, Says Union Free To Explore Alternatives”, LiveLaw, 18 August 2026. Open source

[3] The Bharatiya Nagarik Suraksha Sanhita, 2023, Act No. 46 of 2023, s. 393(5). Open source

EDITORIAL NOTE

View linked judgment PDF