The Supreme Court has declined to replace hanging as the statutory method of executing a death sentence, holding that the material placed before it does not establish that lethal injection is demonstrably more humane, painless or reliable. A Bench comprising Justice Vikram Nath and Justice Sandeep Mehta dismissed the challenge brought by senior advocate Rishi Malhotra, but the judgment is more nuanced than a simple reaffirmation of hanging. The Court did not hold that hanging is scientifically established to be the most humane method of execution. Instead, it found that the petitioner had failed to place before the Court sufficiently conclusive scientific or empirical material demonstrating that lethal injection offers a clear and dependable improvement. The distinction is constitutionally important because the Court’s reasoning leaves open the possibility that a future challenge, supported by substantially better scientific evidence, could require reconsideration of the manner in which India executes capital punishment.
The proceedings arose from Rishi Malhotra v. Union of India, a long-running challenge to the statutory prescription of death by hanging. The petition questioned whether execution by hanging is consistent with the constitutional guarantee of life and personal dignity under Article 21 and urged the Union Government to examine alternative methods, including lethal injection. The petitioner argued that hanging is physically painful, potentially prolonged and psychologically traumatic, whereas lethal injection was presented as a more scientific and medically controlled method. The case had therefore placed before the Court an unusual but profoundly important constitutional question: even where the death penalty itself remains legally permissible, does the Constitution permit the State to employ a method of execution that may cause unnecessary physical suffering or indignity?
The legal framework governing the issue has also changed in terminology following the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023. Section 393(5) of the BNSS now provides that where a person is sentenced to death, the sentence shall direct that the person be hanged by the neck until death. The corresponding provision under the repealed Code of Criminal Procedure, Section 354(5), contained the same basic prescription. Thus, the present challenge was not merely directed against an administrative practice followed by prisons; it involved the statutory method expressly prescribed by Parliament. Any judicial direction replacing hanging with another method would therefore have significant implications for the relationship between judicial review, statutory policy and legislative choice.
The Supreme Court’s decision cannot be understood without returning to its landmark judgment in Deena v. Union of India, decided in 1983. In that case, a three-judge Bench examined whether hanging violated Article 21 and considered several alternative methods of execution, including electrocution, lethal gas, shooting and lethal injection. The Court concluded at that time that none of the alternatives possessed a distinct or demonstrable advantage over hanging sufficient to justify replacing it. Yet Deena contained an important qualification that remains highly relevant today. The Court recognised that demonstrating the inadequacy of alternative methods does not, by itself, establish that hanging is constitutionally unobjectionable. The method of hanging must also be examined independently against the requirements of Article 21.
That observation makes the present judgment considerably more interesting than a straightforward reliance upon precedent. The Court was not simply asked whether lethal injection is available elsewhere in the world. It was asked whether the constitutional standard of dignity requires India to move away from hanging and, if so, whether a particular alternative can be shown to provide a more humane method of carrying out a death sentence. The Bench ultimately found that the evidentiary foundation for such a conclusion was insufficient. The result therefore preserves the existing statutory position, but it does not necessarily close the constitutional debate surrounding the manner of execution.
During the proceedings, the petitioner relied on the proposition that lethal injection is inherently more scientific and less painful because death is caused through the administration of drugs rather than the mechanical consequences associated with hanging. The argument was intuitively attractive: a medically controlled procedure may appear less brutal than placing a condemned prisoner on a gallows. But the Court required more than intuitive comparison. It sought reliable scientific and empirical material capable of establishing that lethal injection actually performs better in practice, particularly in circumstances where the administration of the drugs does not proceed as intended.
This evidentiary question became central when Project 39A, represented by Senior Advocate Meenakshi Arora, placed material before the Court concerning difficulties experienced in jurisdictions that use lethal injection. The material highlighted the possibility of failed or prolonged executions, difficulties in establishing intravenous access and uncertainty surrounding the effectiveness of the drug protocols used. The intervention was significant because it complicated the assumption that lethal injection necessarily means a quick and painless death. If the objective is to identify a constitutionally preferable method, the Court must examine not merely how a method is intended to work but how reliably it works in actual executions.
The discussion concerning the three-drug protocol used in the United States was particularly relevant to this inquiry. Such protocols have traditionally involved a drug intended to induce unconsciousness, a paralytic agent and a drug intended to cause cardiac arrest. The concern presented to the Court was that if the first stage fails to render the prisoner fully unconscious, the paralytic drug may prevent visible movement while leaving the person capable of experiencing severe pain. In other words, a procedure may appear outwardly calm without necessarily being subjectively painless. That possibility directly challenges the assumption that the absence of visible suffering is equivalent to the absence of suffering.
The example of Thomas Creech’s failed execution attempt in Idaho was cited to demonstrate that the difficulties are not merely theoretical. In February 2024, execution personnel reportedly made repeated unsuccessful attempts to establish intravenous access before the execution was ultimately abandoned. Such incidents do not establish that lethal injection is invariably cruel or unreliable, but they do demonstrate why the Supreme Court was reluctant to treat it as self-evidently superior to hanging. The constitutional question is ultimately concerned with the actual operation of the method rather than the appearance of technological sophistication surrounding it.
The Attorney General, R. Venkataramani, accordingly argued that experience from the United States could not establish that lethal injection constitutes a more humane alternative for India. The Union’s position was supported by practical concerns including access to suitable drugs, availability of trained personnel, questions surrounding drug protocols and the documented occurrence of botched executions in jurisdictions that employ lethal injection. The Attorney General also emphasised that there was no demonstrated record of a botched execution under India’s existing statutory system comparable to the material placed before the Court concerning lethal injection abroad. The Court found substance in this submission while considering whether the petitioner had crossed the evidentiary threshold necessary to displace the existing statutory method.
The Court’s treatment of comparative international experience is especially important. Comparative constitutional law often draws upon foreign jurisdictions to understand evolving standards of dignity, punishment and human rights. But comparative experience cannot simply be transplanted without examining institutional and practical differences. The fact that several American jurisdictions use lethal injection does not logically establish that India must adopt it. Conversely, evidence of botched executions in the United States does not conclusively establish that every lethal-injection protocol is unconstitutional. The judicial task is to determine whether the Indian legal system has sufficient evidence to conclude that the proposed alternative materially improves the constitutional position of a condemned prisoner.
The Supreme Court also referred to the United States Supreme Court’s decision in Baze v. Rees, in which the American Court examined the constitutionality of lethal injection and recognised that the procedure does not guarantee a completely painless death. That precedent was useful to the Indian Court because it undermined the proposition that lethal injection can automatically be characterised as a painless or risk-free method. The comparative material therefore ultimately operated in a somewhat unexpected manner: instead of establishing the superiority of lethal injection, it demonstrated that the alternative itself contains significant medical and operational uncertainties.
At the same time, the judgment raises a difficult question about the evidentiary burden in constitutional litigation. If a petitioner challenges a method of execution on the ground that it violates Article 21, must the petitioner positively establish that another method is safer and more humane, or is it sufficient to demonstrate that the existing method itself carries unacceptable risks of suffering? The distinction is critical. A person challenging hanging may argue that the State cannot justify an allegedly cruel practice merely by pointing out that every alternative also has defects. Deena itself recognised this difficulty when it observed that the weakness of an alternative does not automatically establish the constitutional validity of the existing method.
The Court’s reasoning appears to preserve that conceptual distinction while concluding that the evidence before it did not establish that hanging, viewed against the proposed alternative, required immediate statutory replacement. This is a restrained judicial approach. Rather than selecting a new method of execution based on incomplete evidence, the Court has effectively left the matter to future scientific developments and legislative consideration. Such restraint is understandable because a judicially mandated replacement would itself require the State to establish the technical protocol, procure appropriate substances, train personnel and create safeguards for administration. Choosing a method of execution is therefore not merely a philosophical exercise; it involves a complex institutional and medical framework.
The judgment also brings the Law Commission’s 187th Report into sharper focus. In 2003, the Law Commission examined the existing method of execution and recommended replacing hanging with lethal injection, describing the latter as a potentially more humane alternative. The recommendation contemplated amending the relevant statutory provisions to allow lethal injection as an alternative mode of execution and suggested that the judge should have a role in determining the appropriate method after hearing the condemned prisoner.
The fact that Parliament has not adopted that recommendation is legally significant but not necessarily decisive. Law Commission reports are advisory rather than binding, and legislative inaction does not automatically establish the constitutional validity of the existing system. Nevertheless, where Parliament has subsequently enacted the BNSS and retained hanging as the statutory mode of execution, the legislative choice becomes an important consideration for a court examining whether the existing provision should be judicially displaced. The Court must therefore balance its constitutional responsibility to protect dignity against the institutional limits of judicial law-making.
There is also a deeper Article 21 issue that the judgment leaves alive. The Supreme Court has repeatedly expanded Article 21 beyond mere physical survival to include dignity, fairness and protection against arbitrary State action. The idea that even a person lawfully sentenced to death retains constitutional dignity is well established. A condemned prisoner does not cease to be a rights-bearing human being merely because the State has acquired lawful authority to execute the sentence. Consequently, the constitutional debate over the method of execution cannot be reduced to the proposition that death is itself the punishment and therefore the manner in which it is inflicted is legally irrelevant.
Indeed, the Court’s earlier jurisprudence makes precisely the opposite point. In Bachan Singh v. State of Punjab, while upholding the constitutional validity of the death penalty within the “rarest of rare” framework, the Supreme Court acknowledged the profound physical and psychological dimensions of capital punishment. The constitutional permissibility of the death penalty therefore does not mean that every method of carrying it out is automatically permissible. The State’s power to execute must remain subject to the requirements of dignity and procedural fairness that continue until the very end of the prisoner’s life.
The present judgment is consequently better understood as an evidentiary decision about the proposed alternative rather than an affirmative constitutional endorsement of every aspect of hanging. The Court has essentially held that the material before it does not demonstrate that lethal injection offers a sufficiently established improvement to justify replacing the existing statutory method. That is materially different from declaring that hanging is scientifically proven to be painless, ideal or beyond constitutional scrutiny. The distinction may become important if future scientific evidence establishes a more reliable and demonstrably less painful method.
The Court’s reasoning also has implications for the principle of institutional competence. Questions concerning execution protocols involve medical science, pharmacology, prison administration, logistics and human-rights safeguards. Courts can assess constitutional compatibility, but they may not possess the institutional expertise to design the precise drug combinations, dosage safeguards or medical procedures necessary for a nationwide execution system. A constitutionally preferable course may therefore be for the Union Government to constitute a multidisciplinary expert body capable of examining the issue comprehensively rather than waiting for individual litigation to produce fragmented answers.
This possibility is not entirely new. During earlier hearings, the Attorney General had indicated that the Government was considering an expert committee to examine whether a less painful and more dignified method of execution could be developed. The Supreme Court had itself expressed interest in whether modern scientific developments justified moving away from an old method of execution. The present judgment does not appear to foreclose such institutional reconsideration; rather, it underscores that any future change should rest upon reliable scientific evidence rather than assumptions about the apparent humanity of a particular method.
The judgment also presents a broader challenge to the conventional language of “humane execution”. There is an inherent conceptual tension in describing any method of intentionally causing death as humane. The constitutional inquiry is therefore perhaps better framed in terms of avoidable suffering, dignity and proportionality. If the State retains the death penalty as a lawful punishment, it nevertheless has an obligation not to inflict unnecessary pain beyond what is inherent in the sentence itself. The question is not whether execution can be made pleasant—it plainly cannot—but whether the State has selected a method that unnecessarily increases suffering when a demonstrably safer alternative is available.
That principle could provide the foundation for future litigation. Scientific knowledge evolves, medical protocols change and execution practices can be studied empirically. What was uncertain in 1983 may not remain uncertain decades later. The Supreme Court’s decision in Deena itself contemplated that the question could be reconsidered in light of advances in anaesthetic science. The present judgment similarly demonstrates that constitutional adjudication need not freeze the law permanently to a technological conclusion reached in another era. If credible, peer-reviewed and empirically robust evidence emerges establishing that a particular alternative method reliably causes less suffering and carries fewer risks of failed execution, the constitutional argument could acquire an entirely different force.
For the moment, however, the statutory position remains unchanged. Section 393(5) of the BNSS continues to prescribe hanging by the neck until death as the mode of execution of a death sentence. The Supreme Court has declined to substitute lethal injection through judicial intervention because the evidentiary material placed before it did not establish a demonstrable advantage. The ruling therefore preserves the status quo while leaving the underlying constitutional and scientific conversation open.
The judgment is ultimately significant because it exposes the limits of a seemingly simple question—whether lethal injection is more humane than hanging. Behind that question lies a much larger constitutional inquiry concerning how a democratic State exercises its ultimate coercive power. The Court has refused to make a technological substitution merely because one method appears more modern than another. At the same time, the reasoning does not transform hanging into an untouchable constitutional principle. Instead, it places the burden upon future challengers and policymakers to produce credible scientific evidence capable of demonstrating a genuine improvement in the experience of the condemned prisoner.
The larger legal significance of the decision therefore lies in what the Supreme Court did not decide. It did not hold that suffering during execution is constitutionally irrelevant, nor did it declare that hanging is necessarily the most dignified method available. It held that, on the present evidentiary record, lethal injection cannot be judicially preferred as a demonstrably more humane alternative. That leaves an important constitutional door open: if science can establish a method that is demonstrably more reliable, less painful and more consistent with human dignity, the State may have to reconsider the manner in which it carries out the ultimate punishment. Until then, the Court has chosen evidentiary caution over judicial experimentation, while keeping alive the deeper Article 21 proposition that even at the moment when the State lawfully takes a prisoner’s life, constitutional dignity does not disappear.
