The constitutional debate over capital punishment concerns not only whether the State may impose the death penalty, but also whether the method used to carry out that punishment satisfies the requirements of human dignity, fairness and constitutional accountability. Even when a sentence is imposed by a competent court, the manner of its execution remains a question of constitutional significance.
This issue returned to the Supreme Court in Rishi Malhotra & Anr. v. Union of India, decided on 18 August 2026. The petition challenged the constitutional validity of hanging as the prescribed method of execution under Section 354(5) of the Code of Criminal Procedure, 1973, corresponding to Section 393(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023. The petitioners argued that hanging was inconsistent with Articles 14 and 21 because of the suffering and uncertainty associated with the procedure. The Court dismissed the challenge, finding insufficient evidence to reconsider the established precedent, while permitting the possibility of future scrutiny if compelling scientific or empirical evidence emerges.
The judgment highlights a central constitutional tension: how should a constitutional democracy reconcile the legality of capital punishment with the obligation to preserve human dignity? The answer involves judicial precedent, scientific evidence, proportionality, procedural safeguards and the continuing responsibility of the legislature and executive.
ARTICLE 21 AND THE CONSTITUTIONAL LIMITS OF STATE POWER
Article 21 provides that no person shall be deprived of life or personal liberty except according to procedure established by law. Judicial interpretation has transformed this provision from a narrow procedural guarantee into a broader protection of fairness, dignity and non-arbitrariness.
The constitutional validity of the death penalty and the constitutionality of its method of execution are related but distinct questions. The former concerns whether capital punishment may be imposed under the constitutional framework; the latter concerns whether the procedure used to implement a lawful sentence meets the requirements of Article 21.
In Bachan Singh v. State of Punjab (1980), a Constitution Bench upheld the constitutional validity of the death penalty while restricting its imposition to the rarest of rare cases. The judgment required courts to consider the circumstances of the crime and the offender rather than impose death as an ordinary punishment.
In Deena v. Union of India (1983), the Supreme Court examined hanging as a method of execution and upheld its constitutional validity on the evidence then before it. The Court considered whether the method violated Article 21 and concluded that the prescribed procedure met the constitutional standard. The decision was subsequently approved by a Constitution Bench in Shashi Nayar v. Union of India (1992).
These precedents establish that the legality of capital punishment does not eliminate the need to examine the procedure used to carry it out. The State’s authority to punish remains subject to constitutional limitations, including those governing implementation of the sentence.
RISHI MALHOTRA V. UNION OF INDIA: THE 2026 JUDGMENT
The petition in Rishi Malhotra & Anr. v. Union of India was brought under Article 32. It challenged the constitutional validity of hanging as the sole prescribed method of execution under the relevant criminal procedure provisions and sought recognition of a right to a dignified procedure of death.
The challenge relied on concerns about physical suffering, psychological trauma and uncertainty surrounding the procedure. It also invoked the Law Commission of India’s 187th Report on the mode of execution of death sentences, published in 2003, and argued that evolving scientific knowledge justified reconsideration of the earlier legal position.
The Supreme Court, in its judgment dated 18 August 2026, declined to refer the correctness of Deena to a larger Bench. It concluded that the material presented did not establish a sufficient scientific or empirical basis for overturning the earlier ruling. The Court also found no demonstrated basis for concluding that lethal injection offered a distinct or proven advantage over hanging.
The judgment did not abolish capital punishment, replace hanging with another method or establish a general fundamental right to die. Instead, it upheld the existing method under the law as it stood while preserving the possibility of future constitutional scrutiny if compelling evidence materially displaces the factual and scientific basis of the earlier precedent.
The Court also observed that the Union Government could undertake a comprehensive review through an expert body comprising specialists in law, forensic medicine, neuroscience, penology and related disciplines. Such a review would fall within the responsibilities of the executive and legislature.
The distinction between the Court’s holding and its concluding observations is important. The existing method remained constitutionally valid following dismissal of the petition; the possibility of future review was not a direction abolishing or suspending that method.
HUMAN DIGNITY, SCIENTIFIC EVIDENCE AND CONSTITUTIONAL ADJUDICATION
The debate over hanging demonstrates how constitutional adjudication must address questions involving both legal principles and specialised empirical evidence. The meaning of dignity under Article 21 is a constitutional question, but determining the physical consequences and comparative reliability of execution methods also involves scientific assessment.
The petitioners relied on arguments concerning the possibility of suffering, the psychological experience preceding execution and uncertainty in the procedure. The Union Government defended the existing legal position, relying on the precedent established in Deena. The Court considered the material presented but concluded that the evidence did not justify reopening the precedent through a larger Bench reference.
This raises three broader issues.
First, scientific evidence can influence constitutional interpretation. Where a judgment rests partly on empirical assumptions, substantial advances in medical knowledge, forensic science or reliable outcome data may provide grounds for reconsideration. However, assertions that a method is more humane must be supported by credible comparative evidence rather than assumed from its description or use in other jurisdictions.
Second, constitutional interpretation must balance continuity and change. The doctrine of precedent promotes consistency, equal treatment and predictability in law. Yet precedent does not necessarily make a constitutional question permanently immune from reconsideration when its factual foundations have materially changed.
Third, judicial review has institutional limits. Courts determine constitutional validity on the evidence and legal arguments before them. The legislature and executive may separately evaluate policy options, commission expert studies and consider changes to the law within their constitutional powers.
The 2026 judgment reflects this relationship between legal continuity and the possibility of future evidence-based review. Constitutional adjudication must be stable enough to protect the rule of law and responsive enough to address material changes in knowledge.
PROPORTIONALITY, PROCEDURAL FAIRNESS AND CONSTITUTIONAL MORALITY
The principle of proportionality requires the State’s exercise of power to remain within constitutionally permissible limits. In the context of capital punishment, the principle operates at several levels: the circumstances in which the death penalty may be imposed, the procedure followed by courts, and the manner in which a lawful sentence is implemented.
The rarest-of-rare doctrine established in Bachan Singh seeks to restrict the imposition of death to exceptional cases. Procedural fairness requires the accused to receive a fair trial, meaningful legal representation and access to applicable appellate and review remedies. The execution process must also comply with the governing law and the safeguards applicable to death-row prisoners.
Constitutional morality reinforces the requirement that State power be exercised consistently with constitutional values rather than administrative convenience alone. In a punishment involving the irreversible deprivation of life, this principle gives particular importance to legality, fairness, dignity and careful scrutiny of the evidence on which decisions are based.
However, these principles should not be presented as if the 2026 judgment had adopted a new proportionality test or held that hanging violated constitutional morality. The Court dismissed the challenge and upheld the existing method on the material before it. The wider constitutional concepts help explain the debate, but the judgment’s actual holding must remain distinct from broader normative arguments.
The continuing question is how the State can ensure that every stage of capital punishment—from sentencing to the final implementation of a lawful sentence—operates within the Constitution’s requirements of fairness and accountability.
THE WAY FORWARD: EVIDENCE, SAFEGUARDS AND INSTITUTIONAL RESPONSIBILITY
The 2026 judgment leaves room for continued examination of the issue without changing the current legal position. Any future reform should distinguish between constitutional adjudication, legislative policy-making and the administration of sentences.
Independent expert review: If the Union Government undertakes the review contemplated by the Court, it should draw on expertise in forensic medicine, neuroscience, penology, law and relevant comparative research. Its findings should identify the strength and limitations of the evidence rather than assume in advance that any alternative method is superior.
Transparent scientific assessment: Research should examine relevant questions of pain, consciousness, reliability and the risk of procedural failure using credible evidence. Comparative claims should account for differences in legal safeguards, medical protocols and available data.
Legislative responsibility: Any decision to amend the statutory method of execution must be taken through the appropriate legislative process. The executive may examine alternatives, but policy consideration alone does not change the method prescribed by law.
Protection of procedural rights: Existing safeguards relating to legal representation, appeals, review, mercy petitions and lawful execution procedures must be observed. The irreversible nature of capital punishment makes strict compliance with the law especially important.
Continued judicial review: Courts retain their constitutional role in examining challenges brought before them. As the 2026 judgment clarified, future scrutiny remains possible if compelling scientific, medical or empirical evidence materially changes the basis on which the existing method was upheld.
These measures would allow the issue to be considered through evidence, constitutional principles and institutional responsibility rather than assumptions about the superiority of a particular method.
UPSC DIMENSION
|
Constitutional provision or concept |
Relevance |
|
Article 14 |
Guarantees equality before the law and protection against arbitrary State action. |
|
Article 21 |
Protects life and personal liberty, requiring deprivation to follow constitutionally valid procedure. |
|
Article 32 |
Enables individuals to approach the Supreme Court for enforcement of fundamental rights. |
|
Judicial review |
Permits constitutional scrutiny of legislation and State action. |
|
Rarest-of-rare doctrine |
Restricts the imposition of capital punishment under Bachan Singh v. State of Punjab. |
|
Doctrine of precedent |
Promotes consistency and legal certainty while permitting reconsideration through appropriate judicial processes. |
|
Proportionality |
Examines whether State action remains within constitutionally permissible limits. |
|
Constitutional morality |
Emphasises the exercise of public power in accordance with constitutional values and limitations. |
|
Scientific evidence in adjudication |
Helps courts assess empirical claims relevant to constitutional validity. |
|
Separation of powers |
Distinguishes judicial review from executive policy examination and legislative amendment. |
|
Human dignity |
Provides a central normative consideration in interpreting protections under Article 21. |
CONCLUSION
The Supreme Court’s decision in Rishi Malhotra & Anr. v. Union of India illustrates the difficult relationship between capital punishment, human dignity, scientific evidence and constitutional precedent. On 18 August 2026, the Court dismissed the challenge to hanging as the prescribed method of execution, finding insufficient grounds to reconsider the established precedent. It nevertheless left open future constitutional scrutiny if compelling scientific or empirical evidence emerges and recognised that the Union Government could examine alternative methods through an expert review.
The judgment therefore preserves the existing legal position while leaving room for evidence-based policy consideration and future judicial examination. Its significance lies in the distinction between upholding the law on the evidence currently available and declaring that the issue can never be reconsidered.
The broader constitutional question remains whether the exercise of the State’s most severe punitive power can consistently satisfy the requirements of legality, fairness and dignity. A constitutional democracy must address that question through careful adjudication, credible scientific evidence, legislative responsibility and respect for fundamental rights.
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