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REPORTABLE JUDGMENT · STRUCTURED SUMMARY

Supreme Court Rejects Challenge to Hanging, Keeps Door Open for Future Evidence-Based Review

The Supreme Court declined to reopen the settled constitutional position permitting hanging as the statutory method of executing a death sentence, holding that the record did not displace the larger-Bench precedent in De…

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

Published 22 August 202614 min readAutomatically processed

The Supreme Court declined to reopen the settled constitutional position permitting hanging as the statutory method of executing a death sentence, holding that the record did not displace the larger-Bench precedent in Deena or prove lethal injection demonstrably superior. The Court nevertheless preserved the possibility of future scrutiny on stronger scientific evidence and left the Union free to consider an expert-led policy 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 typeWrit Petition (Criminal) under Article 32 / Public Interest Litigation
PlaceNew Delhi
DispositionWrit petition dismissed; no larger-Bench reference; pending applications disposed of. Future evidence-based constitutional scrutiny and an optional Union policy review were expressly left open.

BENCH

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

WHAT THE SUPREME COURT HELD

  • The Supreme Court dismissed the constitutional challenge to hanging as the statutory mode of executing a death sentence and found no basis to refer Deena v. Union of India to a larger Bench. [1] [6] (paras paras. 63, 66; PDF pp. pp. 45, 47)
  • A two-Judge Bench could not depart from the three-Judge ruling in Deena, especially because that ruling had subsequently been approved by a Constitution Bench in Shashi Nayar, unless later constitutional, legislative, scientific or empirical developments displaced its foundation. [1] (paras paras. 48-51, 59-60; PDF pp. pp. 33-34, 43-44)
  • The record did not establish that lethal injection was demonstrably superior or more humane than hanging; the material placed by the impleader itself showed uncertainty and practical failures associated with lethal injection. [1] (paras paras. 53-54, 62; PDF pp. pp. 35-36, 45)
  • The dismissal was expressly left open to future constitutional scrutiny if compelling scientific, medical or empirical evidence later materially displaces the factual and scientific basis of Deena. [1] (paras para. 64; PDF pp. p. 46)

BACKGROUND

  • The petition concerned the constitutionality of the method of executing a death sentence, not the settled constitutional validity of capital punishment itself. [1] (paras paras. 6-7, 21; PDF pp. pp. 4-5, 12)
  • Indian criminal procedure has prescribed hanging as the ordinary method of execution since the colonial procedural codes, and Parliament retained that method in Section 354(5) of the CrPC and later in Section 393(5) of the BNSS. [1] [4] [5] (paras paras. 10-12; PDF pp. pp. 6-7)
  • Deena v. Union of India had upheld hanging as a constitutionally permissible method of execution after considering comparative methods and expert material available at that time. [1] (paras para. 17; PDF pp. pp. 9-10)
  • The Law Commission's 35th Report and later 187th Report examined the mode of execution; the latter recommended reconsideration of hanging and discussed lethal injection as an alternative. [1] (paras paras. 16, 19; PDF pp. pp. 9, 10-11)
  • The petition invoked the evolution of Article 21 dignity jurisprudence, including Gian Kaur, to argue that constitutional protection of dignity remains relevant to the manner in which a lawful death sentence is carried out. [1] [3] (paras paras. 20-21; PDF pp. pp. 11-12)

Procedural history

  • Rishi Malhotra instituted the matter as a public-interest petition under Article 32 challenging Section 354(5) CrPC and its corresponding BNSS provision insofar as hanging is the sole prescribed method of execution. [1] [2] [3] (paras para. 2; PDF pp. pp. 1-2)
  • When notice was issued on 6 October 2017, the Court recorded a prima facie concern that constitutional understanding evolves and that the legislature could consider another mode of execution that avoids unnecessary pain. [1] (paras para. 22; PDF pp. pp. 12-13)
  • On 2 May 2023, the Attorney General informed the Court that the Union Government was considering constitution of an expert committee on alternative modes of execution; the final judgment recorded that no further committee update was placed before it in the Union's written submissions. [1] (paras paras. 23-24; PDF pp. pp. 13-14)
  • An official Supreme Court office report dated 20 January 2026 recorded that the petition had been admitted on 11 November 2025, hearing expedited, and the matter listed for 21 January 2026. [2]

ISSUES BEFORE THE COURT

  • Whether Section 354(5) CrPC and Section 393(5) BNSS, by prescribing hanging as the mode of execution, violate Articles 14 and 21 of the Constitution. [1] [3] [4] [5] (paras paras. 2, 7; PDF pp. pp. 1-2, 5)
  • Whether constitutional dignity requires a condemned prisoner to have access to, or a choice of, a less painful alternative method such as lethal injection or shooting. [1] (paras paras. 29-32; PDF pp. pp. 17-19)
  • Whether developments since Deena supplied a sufficient constitutional, scientific or empirical basis for a two-Judge Bench to doubt that precedent and refer it to a larger Bench. [1] (paras paras. 48-54, 58-60; PDF pp. pp. 33-36, 43-44)

PARTIES’ ARGUMENTS

Petitioners

Rishi Malhotra & Anr.

  • Hanging is barbaric, inhuman and cruel and allegedly causes avoidable physical and psychological suffering inconsistent with Articles 14 and 21. [1] (paras paras. 27-31; PDF pp. pp. 15-18)
  • The 187th Law Commission Report and international safeguards were relied upon to contend that a lawful execution should minimise suffering and that hanging no longer reflects contemporary standards of dignity. [1] (paras paras. 27-30; PDF pp. pp. 15-18)
  • The petitioner argued that the military statutes, which recognise shooting as an alternative mode of execution, exposed an Article 14 disparity when civilians are confined to hanging. [1] (paras paras. 30, 55; PDF pp. pp. 17-18, 36)
  • The petitioner sought either invalidation of the statutory provisions or a reading down that would permit less painful alternatives, including lethal injection or shooting. [1] (paras paras. 31-32; PDF pp. pp. 18-19)
Impleader

Project 39A, National Law University Delhi

  • Project 39A submitted that Deena rested on a limited scientific record and that later medical and historical material cast doubt on the assumption that hanging is invariably instantaneous and pain-free. [1] (paras paras. 33-35; PDF pp. pp. 19-23)
  • The impleader relied on studies and execution accounts to argue that outcomes in hanging can vary and may include asphyxiation or other complications rather than immediate cervical disruption. [1] (paras para. 34; PDF pp. pp. 20-22)
  • At the same time, Project 39A placed material showing that lethal injection has also produced failed and prolonged executions, including difficulties with the commonly used drug protocols in the United States. [1] (paras paras. 36-37; PDF pp. pp. 23-25)
  • The impleader therefore urged that any alternative method must itself undergo rigorous constitutional and scientific scrutiny rather than being assumed to be painless. [1] (paras paras. 36-37, 54; PDF pp. pp. 23-25, 35-36)
Respondent

Union of India

  • The Union argued that a request to redesign the statutory mode of execution raises institutional and separation-of-powers concerns and that courts cannot rewrite legislation under the guise of interpretation. [1] (paras paras. 38-41, 43-47; PDF pp. pp. 26-28, 30-33)
  • The Union relied on Deena and the retention of hanging in the BNSS to contend that the constitutional issue had already been settled and that Parliament had consciously retained the existing mode. [1] (paras paras. 40-41, 45; PDF pp. pp. 27-28, 31-32)
  • It was argued that Article 21 does not create a right to the best possible method or a prisoner choice among execution methods, and that military-law provisions govern a distinct class. [1] (paras paras. 42-44; PDF pp. pp. 29-31)
  • The Attorney General submitted that no credible instance of a botched hanging under India's existing framework had been shown, while the record contained multiple examples of failed lethal-injection executions abroad. [1] (paras paras. 46, 62; PDF pp. pp. 32, 45)

COURT'S ANALYSIS AND REASONING

Binding force of Deena and bench discipline

  • Deena was a three-Judge decision that squarely examined the constitutionality of hanging, and its conclusion was later approved by a Constitution Bench in Shashi Nayar. [1] (paras paras. 48-51; PDF pp. pp. 33-34)
  • Stare decisis required the two-Judge Bench to follow that larger-Bench line unless a significant constitutional development, legislative change, or cogent scientific and empirical evidence showed that its basis had become untenable. [1] (paras para. 49; PDF pp. p. 34)
  • The Court held that neither the petitioner nor the impleader supplied material capable of displacing Deena's factual or constitutional basis. [1] (paras paras. 59-60; PDF pp. pp. 43-44)

Scientific record and comparison with lethal injection

  • The petitioner's assertion that hanging is physiologically traumatic was not supported by evidence the Court regarded as unimpeachable. [1] (paras para. 53; PDF pp. p. 35)
  • Project 39A's material demonstrated uncertainty and practical difficulty with lethal injection, which undercut the proposition that it was demonstrably more humane. [1] (paras para. 54; PDF pp. pp. 35-36)
  • The Court relied on Deena's comparative assessment of electrocution, gas, shooting and lethal injection and found no later record establishing a distinct advantage over hanging. [1] (paras paras. 57-60; PDF pp. pp. 36-44)
  • The absence of a demonstrated botched hanging in India, contrasted with evidence of failed lethal-injection executions in the United States, reinforced the Court's conclusion that lethal injection had not been shown to offer an added advantage. [1] (paras para. 62; PDF pp. p. 45)

Article 14 comparison with military law

  • The Court rejected the comparison with the Army, Air Force and Navy statutes because those enactments operate in a distinct field and govern a separate class of persons subject to military law. [1] (paras paras. 55-56; PDF pp. p. 36)
  • The availability of shooting under military law therefore could not, without more, establish unconstitutional discrimination in the civilian criminal-procedure provisions. [1] (paras para. 56; PDF pp. p. 36)

Law Commission recommendations and institutional role

  • The Court treated the 187th Law Commission Report as recommendatory rather than binding and noted that the BNSS retained hanging despite the earlier report. [1] (paras para. 61; PDF pp. pp. 44-45)
  • The judgment preserved the distinction between judicial review of constitutionality and policy redesign of execution methods, placing any prospective expert-led policy exercise within the Executive and Legislature's domain. [1] (paras paras. 61, 65; PDF pp. pp. 44-47)

Future constitutional scrutiny remains possible

  • The Court expressly stated that constitutional interpretation is responsive to doctrinal and scientific development and that future compelling evidence may justify renewed scrutiny. [1] (paras para. 64; PDF pp. p. 46)
  • It also left the Union free, if it considers appropriate, to convene an expert review involving law, forensic medicine, neuroscience, penology and allied disciplines; this was permissive rather than mandatory. [1] (paras para. 65; PDF pp. pp. 46-47)

RATIO DECIDENDI

  • A two-Judge Bench will not depart from a larger-Bench precedent on a mode of execution that has stood for decades, particularly where that precedent has Constitution Bench approval, unless later constitutional, legislative, scientific or empirical material materially undermines its basis. [1] (paras paras. 48-51, 59-60; PDF pp. pp. 33-34, 43-44)
  • The constitutional challenge failed because the record did not establish with cogent evidence that hanging, as examined in Deena, had become constitutionally impermissible or that lethal injection was demonstrably more humane or reliable. [1] (paras paras. 53-54, 57-63; PDF pp. pp. 35-45)
  • Different execution options under military statutes do not supply an Article 14 comparator for civilians because military personnel are governed by distinct statutes and form a legally distinct class for that purpose. [1] (paras paras. 55-56; PDF pp. p. 36)

OBITER / IMPORTANT CASE-SPECIFIC OBSERVATIONS

The binding disposition followed Deena and dismissed the challenge. The judgment separately preserved future constitutional scrutiny and permitted, without mandating, an executive-legislative expert review; those observations are kept distinct from the ratio.

  • A future challenge is not barred if compelling scientific, medical or empirical evidence materially displaces the factual or scientific assumptions on which Deena proceeded. [1] (paras para. 64; PDF pp. p. 46)
  • The Union Government may, as a matter of policy and if it considers appropriate, undertake an expert-led review of execution methods to assess whether another method better minimises unnecessary pain while preserving dignity. [1] (paras para. 65; PDF pp. pp. 46-47)

FINAL RULING AND DIRECTIONS

  • The writ petition was dismissed. [1] [6] (paras para. 66; PDF pp. p. 47)
  • All pending applications, if any, were disposed of. [1] (paras para. 67; PDF pp. p. 47)
  • The Union Government remains free, if it considers it appropriate, to undertake an expert-led policy review of the existing method of execution. [1] (paras para. 65; PDF pp. pp. 46-47)

STATUTES INVOLVED

InstrumentProvisionsRelevance
Constitution of IndiaArticle 14, Article 21, Article 32Articles 14 and 21 supplied the equality and dignity standards for the constitutional challenge; Article 32 was the jurisdictional basis of the writ petition. [1] [3]
Code of Criminal Procedure, 1973Section 354(5)The challenged provision directs that a person sentenced to death be hanged by the neck until dead. [1] [4]
Bharatiya Nagarik Suraksha Sanhita, 2023Section 393(5)The successor criminal-procedure statute retains the same prescription for execution by hanging. [1] [5]
Army Act, 1950provisions governing execution of death sentencesRelied on comparatively by the petitioner because military law permits shooting as an execution mode; the Court rejected the civilian comparison. [1]
Air Force Act, 1950provisions governing execution of death sentencesPart of the petitioner's military-law comparison; the Court held military statutes govern a distinct class. [1]
Navy Act, 1957provisions governing execution of death sentencesPart of the petitioner's military-law comparison; the Court held military statutes govern a distinct field. [1]

KEY PRECEDENTS AND THEIR TREATMENT

Precedent & CitationTreatmentPrinciple/Application
Jagmohan Singh v. State of U.P., (1973) 1 SCC 20background_onlyCited as the Constitution Bench decision affirming that the death penalty is not unconstitutional when imposed after lawful procedure. [1]
Bachan Singh v. State of Punjab, (1980) 2 SCC 684background_onlyCited for the constitutional validity of capital punishment and the 'rarest of rare' framework; the present case did not reopen that substantive question. [1]
Deena v. Union of India, (1983) 4 SCC 645binding_followedThe controlling three-Judge precedent upholding hanging as a constitutionally permissible mode of execution; the Court found no later material sufficient to displace or refer it for reconsideration. [1]
Shashi Nayar (Smt) v. Union of India, (1992) 1 SCC 96referred_with_approvalThe Constitution Bench approval of Deena was treated as further restricting the scope for a two-Judge Bench to depart from the settled position. [1]
Gian Kaur v. State of Punjab, (1996) 2 SCC 648background_onlyInvoked in framing Article 21 dignity at the end of life and in the petitioner's challenge to the manner of execution. [1]
Shabnam v. Union of India, (2015) 6 SCC 702cited_in_submissionsProject 39A cited it for the proposition that execution should produce immediate unconsciousness and quick death without mutilation. [1]
Baze v. Rees, 553 U.S. 35 (2008)cited_in_submissionsRelied on by the impleader in discussing constitutional scrutiny and practical difficulties associated with lethal-injection protocols. [1]
A.K. Roy v. Union of India, (1982) 1 SCC 271cited_in_submissionsCited by the Union in support of judicial restraint and separation of powers when the requested relief would alter a legislative scheme. [1]
Supreme Court Employees' Welfare Association v. Union of India, (1989) 4 SCC 187cited_in_submissionsCited by the Union on the limits of judicial intervention in legislative policy. [1]
Suresh Seth v. Commissioner, Indore Municipal Corporation, (2005) 13 SCC 287cited_in_submissionsCited by the Union on institutional limits and the inability of courts to direct legislation in a particular form. [1]
Union of India v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323cited_in_submissionsRelied on for the principle that courts cannot add to or rewrite statutory text under the guise of interpretation. [1]
Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364cited_in_submissionsCited by the Union for separation of powers and judicial restraint in policy matters. [1]
Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683cited_in_submissionsCited by the Union for restraint against judicial assumption of executive or legislative functions. [1]

LEGAL SIGNIFICANCE

  • The judgment reaffirms that a constitutional challenge to an execution method may remain legally open even after an earlier precedent, but a smaller Bench requires compelling doctrinal or evidentiary change before departing from a larger-Bench ruling. [1] (paras paras. 49-51, 60, 64; PDF pp. pp. 34, 44, 46)
  • It separates the constitutional minimum from a policy preference for a potentially less painful method: the Court did not constitutionalise lethal injection or prisoner choice, while preserving room for evidence-based legislative or executive reform. [1] (paras paras. 54, 61-65; PDF pp. pp. 35-36, 44-47)
  • The ruling also clarifies that differences between civilian criminal procedure and military execution provisions do not automatically establish Article 14 discrimination because the statutory regimes govern distinct classes. [1] (paras paras. 55-56; PDF pp. p. 36)

PRACTICAL IMPACT — EDITORIAL ANALYSIS

  • For the present, courts imposing a death sentence under the ordinary criminal-procedure framework continue to operate under the statutory direction prescribing hanging; the judgment does not create an alternative method or a right of election between methods. [1] [4] [5] (paras paras. 63-66; PDF pp. pp. 45-47)
  • Future litigation seeking to reopen the issue will likely need a materially stronger scientific or medical record that directly challenges the factual assumptions accepted in Deena rather than relying only on normative preference or comparative practice. [1] (paras paras. 53-60, 64; PDF pp. pp. 35-44, 46)
  • The Union retains policy space to commission an interdisciplinary expert review, but the judgment imposes no deadline and no mandatory obligation to constitute such a body. [1] (paras para. 65; PDF pp. pp. 46-47)

SOURCE CITATIONS & ILI-STYLE BIBLIOGRAPHY

[1] Rishi Malhotra & Anr. v. Union of India, W.P. (Crl.) No. 145 of 2017, 2026 INSC 873 (Supreme Court of India, decided 18 Aug. 2026). Open source

[2] Supreme Court of India, Office Report, Rishi Malhotra & Anr. v. Union of India, W.P. (Crl.) No. 145 of 2017 (20 Jan. 2026). Open source

[3] The Constitution of India, arts. 14, 21 & 32 (India). Open source

[4] The Code of Criminal Procedure, 1973, § 354(5), Act 2 of 1974 (India). Open source

[5] The Bharatiya Nagarik Suraksha Sanhita, 2023, § 393(5), Act 46 of 2023 (India). Open source

[6] Amisha Shrivastava, ‘Supreme Court Dismisses Plea To Abolish Hanging As Method To Execute Death Penalty, Says Union Can Explore Alternatives’, LiveLaw, 18 Aug. 2026. Open source

EDITORIAL NOTE

View linked judgment PDF