Rishi Malhotra v. Union of India (2026 INSC 873): Why 43-Year-Old Precedent in Deena v. Union of India Still Governs the Mode of Execution in India
INTRODUCTION
Can a punishment be constitutionally valid while the method used to carry it out is not? That was the question at the heart of a writ petition decided by the Supreme Court on 18 August 2026, in Rishi Malhotra & Anr. v. Union of India, reported as 2026 INSC 873. A Bench of Justices Vikram Nath and Sandeep Mehta was called upon to examine whether Section 354(5) of the Code of Criminal Procedure, 1973 — corresponding to Section 393(5) of the Bharatiya Nagarika Suraksha Sanhita, 2023 — violates Article 21 of the Constitution insofar as it prescribes hanging by the neck as the sole method of executing a death sentence in India. The petition, filed under Article 32 as a public interest litigation, had been pending since 2017. The Court’s answer, delivered nine years later, was to dismiss the petition while leaving the door open, carefully, for the future.
BACKGROUND: HOW HANGING BECAME THE LAW’S ONLY ANSWER
The judgment traces the method’s lineage back to the Code of Criminal Procedure, 1861, which first established hanging by the neck as the sole method of execution in colonial India, framed at the time as a humanitarian reform built on the long-drop technique — a calculation of the condemned person’s height and weight intended to fracture the cervical vertebrae and cause near-instantaneous unconsciousness. That prescription carried forward unchanged through the Codes of 1882 and 1898, survived independence and the comprehensive 1973 revision of the CrPC, and has now been carried into the BNSS, 2023, despite that statute’s stated aim of modernising and decolonising India’s criminal law. In other words, the method has remained legally unchanged for more than a century and a half.
The constitutionality of the death penalty itself was settled long ago — first in Jagmohan Singh v. State of U.P. (1973), then more definitively in Bachan Singh v. State of Punjab (1980), which introduced the ‘rarest of rare’ doctrine. The present case did not reopen that question. What it examined was narrower: whether the specific mode of carrying out an otherwise valid sentence — hanging — meets the constitutional threshold of being just, fair and reasonable. That narrower question was first addressed by a three-Judge Bench in Deena v. Union of India (1983), which upheld hanging as quick, simple, and free of unnecessary suffering, relying substantially on government submissions and expert material available at the time. For over four decades, Deena has stood as the settled law on the point, later approved by a Constitution Bench in Shashi Nayar v. Union of India (1992).
The petitioner in the present case, Shri Rishi Malhotra, argued that Deena could not be treated as the final word given developments since 1983 — most notably the Law Commission of India’s 187th Report of 2003, which acknowledged that hanging is ‘undoubtedly accompanied by intense physical torture and pain’, and the Supreme Court’s own 1996 ruling in Gian Kaur v. State of Punjab, which held that the right to life under Article 21 includes the right to die with dignity, extending even to those on death row.
THE PETITIONER’S CASE FOR STRIKING DOWN SECTION 354(5)
Appearing in person, Shri Malhotra argued that hanging is barbaric and inhumane, relying heavily on the Law Commission’s 187th Report, which documented the procedural steps a condemned prisoner undergoes before execution and acknowledged that the method carries a real risk of failure — asphyxiation if the drop is too short, decapitation if it is too long. He also invoked ECOSOC Safeguard No. 9, which requires that where capital punishment is carried out, it be done with the minimum possible suffering, and pointed to India’s own military statutes — the Army Act, Air Force Act, and Navy Act — which permit execution either by hanging or by shooting, arguing that this created an arbitrary distinction under Article 14 between military and civilian convicts.
His primary prayer was for the Court to strike down Section 354(5) entirely; in the alternative, he sought a reading down of the provision to permit less painful methods such as lethal injection or shooting.
THE IMPLEADER’S NUANCED POSITION: NEITHER METHOD IS PERFECT
Project 39A of the National Law University, Delhi, impleaded in the matter, took a more evidence-heavy but ultimately double-edged position. Senior counsel Ms. Meenakshi Arora presented scientific material — including a 1992 post-exhumation study of persons executed in England between 1882 and 1945 — showing that the intended ‘hangman’s fracture’ occurred in only a small fraction of cases, with several deaths instead resulting from asphyxiation. She argued this demonstrated that hanging is neither reliably quick nor painless, and that the preparatory procedure itself — weighing, measuring, and calculating the drop — inflicts significant psychological suffering independent of the execution itself.
However, in a move that ultimately worked against the petitioner’s alternative prayer, Ms. Arora also placed before the Court extensive material on the documented failures of lethal injection in the United States, including a catalogue of roughly 276 botched executions out of approximately 9,000 carried out between 1890 and 2010 — a failure rate of about three percent — and specific recent instances of failed intravenous access attempts. Her submission was that any alternative method proposed as a replacement must itself survive rigorous constitutional scrutiny before adoption, rather than being assumed superior simply because it sounds more clinical.
THE UNION’S DEFENCE: SETTLED LAW, LEGISLATIVE REAFFIRMATION, AND JUDICIAL RESTRAINT
The Attorney General, Shri R. Venkataramani, resisted the petition on multiple fronts, argued the petition was not maintainable, since directing the substitution of a legislatively prescribed method of execution would amount to the Court redesigning penal policy — a function reserved for Parliament. He stressed that Deena remained good law, approved by a Constitution Bench, and that Parliament’s conscious retention of hanging in the newly enacted BNSS, with full awareness of the ongoing debate, was itself a legislative reaffirmation that answered the constitutional challenge. He further argued that Law Commission reports are recommendatory and carry no binding force, and that the 187th Report itself had recommended adding lethal injection as an alternative, not deleting hanging altogether.
On the Article 14 argument, the Attorney General submitted that military statutes operate in a distinct field governing a separate class of persons, and Parliament’s decision not to extend the same option to civilians does not amount to hostile discrimination. He also pointed out the stark difference in scale between the two jurisdictions being compared: India carried out only eight executions between 2001 and 2023, against more than a thousand in the United States over a comparable period, making American experience with lethal injection an unreliable benchmark for Indian policy. Crucially, no material was placed before the Court showing even a single botched hanging in India under the existing framework.
THE COURT’S REASONING: STARE DECISIS AND THE ABSENCE OF NEW EVIDENCE
The Bench anchored its decision firmly in the doctrine of stare decisis. Since Deena was decided by a three-Judge Bench and subsequently approved by a Constitution Bench in Shashi Nayar, the scope for a two-Judge Bench to depart from that ratio was, in the Court’s words, ‘extremely limited’ — permissible only where a significant constitutional development, legislative amendment, or cogent scientific and empirical evidence displaces the earlier finding. The Court held that neither the petitioner nor the impleader had placed any such material on record.
Revisiting Deena’s own extensive comparative survey of execution methods — electrocution, lethal gas, shooting, and lethal injection — the Bench noted that each carries its own documented risks: electrocution risks incomplete current transfer and technical failure; lethal gas is slow, elaborate, and historically uncertain in its onset; shooting risks bungled attempts and carries troubling associations with extrajudicial state violence; and lethal injection depends on a delicate intravenous procedure that even the Royal Commission on Capital Punishment doubted was more humane than hanging. On this basis, the Court concluded, as Deena had concluded over four decades earlier, that no alternative method possesses a demonstrable advantage over hanging sufficient to compel reconsideration.
The Court also rejected the Article 14 argument based on military statutes, holding that those enactments operate in a distinct field governing a separate class of persons and cannot be used to test the validity of provisions governing civilian execution. And it declined to give independent weight to the Law Commission’s 187th Report, characterising its findings as recommendatory rather than legally binding, particularly since Parliament had considered and not acted on it even while drafting the BNSS.
KEY LEGAL PRINCIPLES THIS JUDGMENT REINFORCES
1. Stare decisis constrains smaller Benches sharply where a decision has been rendered by a larger Bench and subsequently approved by a Constitution Bench — departure requires significant constitutional development or cogent new evidence, not renewed argument on old material.
2. Legislative re-enactment of a provision, with awareness of ongoing debate, operates as a form of reaffirmation that weighs against a constitutional challenge to that provision.
3. Law Commission recommendations are persuasive but not binding; their non-implementation is a policy choice for the Executive and Legislature, not a ground for judicial invalidation.
4. A comparative constitutional challenge to a method of punishment must show a demonstrably superior alternative — the mere existence of debate or discomfort with the status quo is not sufficient without displacing evidence.
5. Provisions applicable to a distinct class of persons under specialised statutes, such as military law, cannot be relied upon to establish Article 14 discrimination against a different class governed by ordinary criminal law.
6. Constitutional interpretation remains organic — the Court expressly left open the possibility of future reconsideration should compelling scientific, medical, or empirical evidence emerge that displaces the factual basis of Deena.
WHAT THIS MEANS GOING FORWARD
The judgment does not close the door permanently. The Bench was explicit that its dismissal should not be read as foreclosing future constitutional scrutiny if compelling new scientific or empirical evidence emerges, and it noted that the Union Government remains free to constitute an expert body — spanning law, forensic medicine, neuroscience, and penology — to examine whether an alternative method might better serve the constitutional goal of minimising suffering while preserving the dignity of the condemned. Notably, the Court had itself invited the government to explore this in 2017, and the Attorney General had indicated in 2023 that such a committee was under consideration — but no committee had, in fact, been constituted by the time of this hearing. For now, that responsibility remains squarely with the Executive and Legislature, not the courts.
FREQUENTLY ASKED QUESTIONS
Q: Has the Supreme Court declared hanging unconstitutional?
No. The Court dismissed the petition challenging Section 354(5) CrPC/Section 393(5) BNSS and reaffirmed the four-decade-old ruling in Deena v. Union of India, which held that hanging does not violate Article 21 of the Constitution.
Q: Can this decision be challenged again in the future?
Yes, in principle. The Court expressly clarified that its dismissal does not foreclose future constitutional scrutiny if compelling new scientific, medical, or empirical evidence emerges that displaces the factual basis on which Deena was decided.
Q: Why didn’t the Court consider lethal injection as a better alternative?
Both the petitioner and the impleader placed conflicting material before the Court. While the petitioner argued lethal injection was more humane, the impleader’s own evidence — drawn largely from the United States — documented a significant rate of botched lethal injection executions, leading the Court to conclude that no alternative method has a demonstrable advantage over hanging.
Q: What is the significance of Parliament retaining hanging in the new BNSS, 2023?
The Court treated Parliament’s conscious retention of the same provision in the Bharatiya Nagarika Suraksha Sanhita, despite the broader project of modernising criminal law, as a legislative reaffirmation of the existing policy — a factor that weighed against the constitutional challenge.
Q: What is the ‘rarest of rare’ doctrine, and was it revisited in this case?
The ‘rarest of rare’ doctrine, from Bachan Singh v. State of Punjab (1980), governs when a death sentence itself may be imposed. This case did not revisit that doctrine; it concerned only the constitutionality of the method used to carry out an already-imposed death sentence.
CONCLUSION
Rishi Malhotra v. Union of India is, at its core, a judgment about the limits of judicial re-examination in the face of settled precedent. The Bench did not find hanging to be a perfect method — indeed, the record before it, drawn from both sides, painted every known method of execution as carrying its own risks and uncertainties. What it found was that no party had shown a method demonstrably superior to hanging, and that in the absence of such evidence, a two-Judge Bench had no basis to depart from a Constitution Bench-approved precedent that has stood for over forty years. The judgment leaves the underlying debate unresolved in the abstract, but procedurally settled for now — with the door held open, deliberately, for science and policy to eventually catch up to the question the law has been asking since 1861.