Painless Procedure For Death Penalty: Supreme Court Upholds Hanging, Declines Larger Bench Reference

The Bench of Justices Vikram Nath and Sandeep Mehta was hearing a plea seeking a less painful and more dignified alternative to hanging.

Justice Sandeep Mehta said the Court was not persuaded that a case had been made out for referring the three-Judge Bench decision in Dina to a larger Bench for reconsideration of the constitutional validity of Section 354 CrPC and Section 393(5) BNSS.

However, the Court clarified that dismissal of the writ petition would not foreclose future constitutional scrutiny if compelling scientific, medical or empirical evidence emerges showing that the factual and scientific basis of Dina has been materially displaced by subsequent developments.

The Court thus left open the possibility of reconsidering the constitutional validity of the existing mode of execution if such developments emerge.

Background

A bench of Justices Vikram Nath and Sandeep Mehta has reserved their judgment after hearing Attorney General for India R Venkataramani, Senior Advocate Meenakshi Arora (for Project 39A) and Advocate Rishi Malhotra, who is the petitioner.

In 2023, Supreme Court had allowed an intervention application filed by National Law University, Delhi's Project 39A in the plea seeking painless procedure for death convicts.

Earlier, the Supreme Court was informed that the Central Government was deliberating forming a committee to look into the issue of painless procedure of death penalty other than hanging. "We are deciding on who should be made part of such a committee, looking at names. I will be able to give a clearer picture soon", AG Venkataramani had told a former CJI Chandrachud led bench.

Supreme Court had asked the Central Government to provide it with relevant information on the process of death penalty by hanging. Court had also asked the government to look into the aspect of technology and science, to check if there is method far more consistent with human dignity other than hanging a convict. Further data was also on alternate methods used in other countries.

Advocate Rishi Malhotra, the petitioner had argued before the bench that death by dignity is a fundamental right. "When a man is hanged, his dignity is lost. A convict whose life has to end, he should not have to suffer the pain of hanging", Malhotra had further told the bench. While taking court through the process of hanging, the petitioner advocate had submitted that the body of a condemner should be left hanging till the medical practitioner says that life is extinct. Submitting that other countries were slowly moving away from the process of hanging a death convict, Court was told that USA has adopted administering a lethal injection.

The petition before the Supreme Court sought to declare provisions contained under Section 354(5) Criminal Procedure Code as ultra vires of the Constitution for being discriminatory and violative of Article 21 of the Constitution and also in contravention of the Constitution Bench judgment in Gian Kaur's case.

It also sought to declare the right to die by a dignified procedure of death as a fundamental right as under Article 21 of the Constitution of India. Court was told that while hanging a convict, the entire execution process takes more than 40 minutes to declare prisoner to be dead, the shooting process involves not more than few minutes.

In case of intravenous lethal injection, court was told that all is over in 5 minutes. The petitioner argued that execution as contemplated under Section 354(5) Criminal Procedure Code is not only barbaric, inhuman and cruel, but also against resolutions adopted by the United Nations Economic and Social Council (ECOSOC).

Case Title: Rishi Malhotra vs. Union of India

Bench: Justices Vikram Nath and Sandeep Mehta

Judgment Date: August 18, 2026