Written By: Apoorv Agarwal, Aparna Iyer
On 18.08.2026, a Bench of two Judges of the Supreme Court, in Rishi Malhotra v. Union of India, dismissed a writ petition under Article 32 that sought to dislodge hanging as the sole method of executing a sentence of death under Section 354(5) of the Code of Criminal Procedure, 1973, now Section 393(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023. The petitioner, appearing in person, asked the Court to declare the provision ultra vires Article 21 and to recognise a right to a dignified mode of death for the condemned prisoner. What the judgment settles, and what it deliberately leaves open, deserves close attention from anyone who practises in the field of criminal constitutional law.
The petition did not arrive on a blank canvas. Hanging as the sole mode of execution has stood since the Code of Criminal Procedure of 1861 and survived every subsequent recodification, including the recent transition to the BNSS. Its constitutional validity was tested and upheld four decades ago by a three Judge Bench in Deena v. Union of India, a decision that examined the mechanics of the long drop method in considerable depth and weighed it against electrocution, the gas chamber, shooting and lethal injection before concluding that none of those alternatives carried any demonstrable advantage over hanging. That finding was later approved by a Constitution Bench in Shashi Nayar, a fact the Court in the present case took care to underline, since it narrows even further the room available to a smaller Bench to disturb the ratio.
The reasoning that carried the day is, at its core, a reasoning of institutional discipline rather than of medical or penological conviction. The Bench held that a smaller Bench cannot depart from a ratio laid down by a larger Bench merely because it might, on a fresh look, prefer a different outcome. What is required is a showing that the earlier view has been rendered unsound by subsequent constitutional development, legislative change or genuinely new scientific and empirical material. The petitioner offered assertion and advocacy on the cruelty of hanging, but nothing that met that threshold. The findings of the Law Commission’s 187th Report, however forcefully worded, were treated as recommendatory and, tellingly, as material that Parliament must be presumed to have already weighed and rejected when it consciously retained the identical prescription in the BNSS.
What lent the judgment its balance was the intervention of Project 39A as impleader. Ms. Meenakshi Arora placed before the Court a body of evidence on the practical record of lethal injection in the United States, including the well documented incidence of botched executions and the specific and troubling case of the attempted execution of Thomas Creech in Idaho. That evidence did real work. It meant the petitioner’s alternative was not merely untested in theory but affirmatively shown to carry its own serious risks in practice, which allowed the Court to hold, with some comfort, that no credible case had been made that any other method was demonstrably more humane than hanging. The argument built on the Army Act, the Air Force Act and the Navy Act, which permit death by shooting for military offenders, fared no better, since the Court found the military context too distinct in class and purpose to found an Article 14 comparison with the ordinary criminal law.
The part of the judgment that will matter most to future litigants is not the dismissal itself but the two paragraphs that follow it. The Court was careful to record that its refusal to refer Deena to a larger Bench does not foreclose constitutional scrutiny should genuinely new scientific or empirical material emerge, and it went further to invite the Union Government to undertake, as a matter of policy rather than compulsion, a review of the existing method through an expert body drawn from forensic medicine, neuroscience and penology. That is a considered piece of drafting. It preserves the doctrine of stare decisis intact while signalling, without directing, that the executive retains full liberty to move first where the judiciary has declined to.
For counsel advising on the next challenge, the lesson is procedural before it is substantive. A future petition cannot succeed on renewed advocacy alone. It will need a dedicated evidentiary record, built preferably through expert affidavits and current forensic literature specific to methods and outcomes, that speaks directly to whether the factual premises of Deena, namely the claimed instantaneity of unconsciousness and the asserted rarity of a botched drop, still hold up against what is now known. The absence of even one documented instance of a botched execution in India under the existing framework was treated by the Court as telling, and any future challenge will have to reckon with that gap rather than argue around it.
There is a quieter point worth making before closing. The judgment resists the temptation, always present in death penalty litigation, to treat the abolition of a method as a proxy for the abolition of the sentence itself. The Bench was careful to record that the constitutionality of capital punishment stands settled since Bachan Singh and was not reopened here. What remained for decision was narrower and more technical, namely whether the chosen mode of carrying out that sentence meets the standard of decency demanded by Article 21. Keeping that distinction visible, as this judgment does, is itself a discipline worth commending, since the two questions are often blurred by advocates on both sides for rhetorical convenience. Rishi Malhotra does not close the door on the debate over how the State takes a life. It simply insists, rightly in this columnist’s view, that the door be opened next time with evidence rather than indignation.
