In 2017, Senior Advocate Rishi Malhotra approached the Supreme Court challenging the constitutional validity of hanging as the only method of executing a death sentence under Section 354(5) of the CrPC (now mirrored in Section 393(5) of the Bharatiya Nagarik Suraksha Sanhita). The provision requires that a person sentenced to death “be hanged by the neck till he is dead.”
He argued that hanging causes prolonged pain and suffering and violates the right to die with dignity under Article 21, seeking its replacement with less painful alternatives like lethal injection. The core issue before the court was whether the 1983 ruling in Deena vs. Union of India upholding hanging still holds, or whether newer scientific evidence demands a more humane method of execution. Last month, a bench of Justices Vikram Nath and Sandeep Mehta dismissed Malhotra’s petition.
The court was not convinced that the 1983 three-judge decision in the Deena case needed reconsideration by a larger bench. It found no scientific material establishing that lethal injection—or any other suggested alternative—has a demonstrable advantage over hanging in minimising pain. There has been no recorded instance of a botched hanging under the Indian statutory framework, the bench noted, while lethal injection has produced numerous botched executions in the United States. Hence, the argument that hanging is uniquely cruel and prolonged was held to be unconvincing on the material placed before the court.
Yet the judgment is careful. It does not treat the question as permanently closed. Constitutional interpretation, the court observed, is organic. Should compelling scientific, medical or empirical evidence emerge that displaces the factual basis of the Deena case, future scrutiny remains open. More importantly, nothing in the ruling prevents the Union government from constituting an expert body—drawing on law, forensic medicine, neuroscience, penology and related disciplines—to examine whether another method better serves the constitutional objective of minimising unnecessary suffering while preserving the dignity of the condemned, said the court.
If you ask me, this is judicial restraint of a particular kind. The court declined to convert a policy preference into a constitutional command. It recognised that the choice of execution method sits primarily with the legislature and the executive. At the same time, it refused to lock the door. The right under Article 21 includes the right to die with dignity and the court has simply held that the existing method has not been shown to violate that standard on the present record.
The petition had drawn on the Law Commission’s 187th Report, which recorded a body of opinion in favour of replacing hanging, and on comparative practice in jurisdictions that have moved to lethal injection. Those references were noted but treated as recommendatory or context-specific. Comparative experience, the court effectively said, cannot by itself rewrite a statutory choice that has withstood earlier constitutional scrutiny.
The deeper tension is familiar. Capital punishment itself remains constitutionally valid, confined to the “rarest of rare” cases. Once that premise is accepted, the method of carrying it out becomes a question of means rather than ends. Courts are rightly reluctant to prescribe the means when the evidence of superior humanity is contested and incomplete.
Yet the same constitutional concern for dignity that shaped the rarest-of-rare doctrine also requires that the State not inflict avoidable suffering in the final act of punishment.
What the judgment leaves open is therefore significant. An expert review is not a judicial direction; it is an invitation the government is free to accept or decline. Whether that invitation is taken up will decide if the conversation moves from courtroom advocacy to institutional examination of medical evidence, comparative data and practical feasibility. Until then, the statute continues to prescribe hanging.
The court’s approach is measured. It has neither abolished the method nor declared it beyond challenge forever. It has insisted that any change must rest on evidence strong enough to displace settled precedent, and that the primary responsibility for examining alternatives belongs to the political branches. In a constitutional democracy that still retains capital punishment, that allocation of roles is both principled and incomplete. The incompleteness is not the court’s alone to fill.
