Supreme Court declines to reconsider hanging as India’s sole method of executing death sentences

The petitioner filed a public-interest writ petition under Article 32 challenging the constitutional validity of Section 354(5) of the Code of Criminal Procedure, 1973 (“CrPC”), corresponding to Section 393(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), insofar as it prescribes hanging by the neck until death as the sole method of executing a death sentence.

The petitioner contended that hanging is cruel, inhuman, physically painful, psychologically traumatic, scientifically uncertain, and inconsistent with the right to life and dignity under Articles 14 and 21.

The Union of India opposed the petition, relying principally on Deena v. Union of India, which had upheld hanging as constitutionally valid, and submitted that the choice of execution method was a matter of legislative policy.

The case was heard by a two-Judge Bench, notwithstanding that Deena had been decided by a three-Judge Bench and subsequently approved by a Constitution Bench in Shashi Nayar v. Union of India.

1. Whether Section 354(5) CrPC and Section 393(5) BNSS, prescribing hanging as the sole method of executing a death sentence, violate Articles 14 and 21 of the Constitution by authorising a cruel, arbitrary, or undignified mode of execution.

2. Whether the constitutional validity of hanging, as upheld in Deena v. Union of India, required reconsideration or reference to a larger Bench in light of subsequent scientific, medical, empirical, and constitutional developments.

3. Whether the Court could read down or judicially substitute the statutory method of hanging with alternative methods such as lethal injection or shooting.

The Court applied Articles 14 and 21 of the Constitution, including the requirement that a procedure depriving a person of life must be just, fair, reasonable, and compatible with human dignity.

Jagmohan Singh v. State of Uttar Pradesh and Bachan Singh v. State of Punjab establish that capital punishment is not per se unconstitutional, subject to rigorous procedural safeguards and the “rarest of rare” limitation.

Gian Kaur v. State of Punjab recognises that the right to life includes the right to live with dignity and, in the appropriate constitutional sense, the right to die with dignity.

In Deena v. Union of India, a three-Judge Bench upheld Section 354(5) CrPC, holding that properly administered hanging is quick, certain, decent, and does not violate Article 21.

Shashi Nayar v. Union of India, a Constitution Bench decision, approved the ratio in Deena, thereby strengthening the rule of precedent applicable to the present Bench.

The Court also applied the doctrine of stare decisis, under which a smaller Bench ordinarily cannot depart from a larger-Bench decision absent compelling constitutional, legislative, scientific, or empirical developments.

It further recognised the separation-of-powers principle that courts cannot rewrite legislation or substitute their preferred penal policy for that adopted by Parliament.

The Court held that the challenge was substantially governed by Deena, which had already examined hanging in comparison with electrocution, lethal gas, shooting, and lethal injection and found no alternative method to possess a distinct or demonstrable constitutional advantage.

Although the petitioner relied on the Law Commission’s 187th Report and scientific material concerning pain, failed executions, and the uncertainty of hanging, the Court found that the material did not constitute credible and unimpeachable evidence sufficient to displace the factual foundation of Deena.

The Court also rejected reliance on military statutes permitting shooting because those enactments operate in a distinct legal field and apply to persons subject to military law, not civilians sentenced under ordinary criminal law.

It concluded that lethal injection could not be treated as demonstrably more humane or reliable, particularly in view of evidence concerning botched executions in the United States.

Since Deena had been approved by Shashi Nayar, and no compelling subsequent development was demonstrated, the two-Judge Bench found no sufficient basis to refer the matter to a larger Bench.

The Court nevertheless acknowledged that the constitutional position could be revisited if future scientific, medical, or empirical evidence materially displaced the basis of Deena.

It upheld, for the purposes of the present challenge, the constitutional validity of Section 354(5) CrPC and Section 393(5) BNSS prescribing hanging as the method of execution of a death sentence.

The Court clarified that future constitutional scrutiny would remain available if compelling evidence established that the scientific and factual assumptions underlying Deena had been materially displaced.

It also observed that the Union Government remained free to constitute an expert body and undertake a policy review of execution methods, including possible alternatives aimed at minimising unnecessary pain while preserving the dignity of the condemned prisoner.