Dignity in death: Supreme Court upholds hanging under Article 21

Why in the News

The Supreme Court has dismissed a public interest litigation arguing that death by hanging is scientifically unreliable and violates the right to a dignified death under Article 21 of the Constitution. The ruling holds that a method of execution devised in colonial India still satisfies the constitutional promise of dignity, while leaving the question open to a future challenge built on fresh scientific material.

What is the long drop method of hanging?

1. The colonial inheritance: Hanging is the prescribed method of executing death sentences in India and derives from British Common Law.
2. The older short drop method: Historically, hanging was carried out through a short drop, which causes death by asphyxiation.
3. What the long drop is meant to do: A longer drop is calibrated to snap the second and third cervical vertebrae, the C2 and C3, and with them the spinal cord, rendering the person immediately unconscious.
4. Why calibration decides the outcome: The drop must be matched to the individual’s weight and height, since a drop that is too short causes prolonged strangulation and one that is too long risks decapitation.
5. The protocol afterwards: Standard prison protocols require the body to be left hanging for 30 minutes after the trap door opens.

What is the current status of capital punishment and the right to die with dignity in India?

1. Executions carried out: 971 executions have taken place in India between 1947 and 2025.
2. Executions in this century: Only six executions have taken place since 2001, the most recent in 2020, of the four convicts in the Delhi gang rape and murder case.
3. Sentences imposed: 1,281 convicts were sentenced to death between 2016 and 2025, which is far larger than the number of executions carried out.
4. The sentencing threshold: The death penalty may be imposed only in the rarest of rare cases, the standard laid down in Bachan Singh v State of Punjab (1980).
5. The statutory command: Section 393(5) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 provides that where a person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.
6. How old the clause is: The clause has barely changed since it was introduced in the Code of Criminal Procedure in 1861 and has survived multiple amendments.
7. The recognised right: The Supreme Court in Gian Kaur v State of Punjab (1996) held that the right to life under Article 21 includes the right to live with dignity and consequently to die with dignity.
8. The limits on that right: The right to die with dignity does not extend to a right to take one’s own life, and its recognised application is to end of life decisions rather than to the manner of a lawful execution.

Constitutional Provisions Related to Capital Punishment

1. Article 21: Guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law, and this procedure must be fair, just and reasonable.
2. Article 14: Requires that the classification of offences and offenders attracting the death penalty be reasonable and non arbitrary.
3. Article 20(1): Bars the imposition of a penalty greater than that prescribed by the law in force at the time the offence was committed.
4. Article 22: Provides procedural protections on arrest and detention, including the right to consult and be defended by a legal practitioner.
5. Article 72: Empowers the President to grant pardon, reprieve, respite or remission of punishment, and to suspend, remit or commute a sentence of death.
6. Article 161: Empowers the Governor to grant pardon and to commute sentences, though the power to pardon a death sentence rests with the President.
7. Article 134: Provides an appeal to the Supreme Court in a criminal proceeding where a High Court has reversed an acquittal and imposed a death sentence.
8. Article 136: Provides for special leave to appeal to the Supreme Court against any judgment or order in any cause or matter.
9. Article 137: Provides the power of review, under which death row convicts are entitled to an open court hearing of a review petition.
10. Concurrent List, Entry 1 and Entry 2: Place criminal law and criminal procedure in the Concurrent List, so both Parliament and State legislatures may legislate on them.

What did the petition argue?

1. The relief sought: A declaration that the provision prescribing hanging is unconstitutional, on the ground that Article 21 includes a right to die through a dignified procedure.
2. The characterisation of the method: The method was described as accompanied by intense physical torture and pain, and as inherently unpredictable.
3. The scientific material relied on: A 1992 study of the remains of 34 people hanged in England between 1882 and 1945.
4. What the study found: Fractures at C2 and C3 were common, but the hangman’s fracture, assumed to cause near instant death, appeared in only three of the 34 cases, and six died of asphyxiation instead.
5. The inference drawn: Hanging is therefore neither quick nor controllable in the way the law assumes it to be.
6. The intervenor’s evidence: The Executive Director of a university death penalty clinic that intervened in the proceedings stated that researchers examining the remains of executed prisoners found that people had not died by an instant breaking of the neck, and that a range of painful and long drawn causes had produced their deaths.

Why did the Court decline to revisit the 1983 precedent?

1. The binding precedent: A three judge bench in Deena vs Union of India (1983) had upheld hanging as a constitutional mode of execution.
2. What Deena examined: That bench considered medical evidence, expert opinion and comparative execution methods before ruling.
3. What Deena held: Hanging, when properly administered, is a quick and certain method, causes no greater pain than any other known method, and avoids barbarity, torture and degradation.
4. The legislative hurdle: Parliament chose to retain hanging while enacting the Bharatiya Nagarik Suraksha Sanhita, which is a recent legislative reaffirmation of the method.
5. The evidentiary finding: The new scientific material did not displace the basis on which Deena was decided.
6. The comparative finding: The material did not establish that lethal injection, electrocution, lethal gas or shooting offered any advantage over hanging.
7. The constitutional conclusion: The existing method continues to satisfy the State’s obligation to carry out a death sentence with decency and decorum and without degradation or brutality.

What is the Union government’s position?

1. The claim made: Hanging remains the safest and quickest available method of execution.
2. The domestic record cited: No botched execution has ever been recorded in India.
3. The comparative argument: Lethal injection in the United States carries a well documented history of failures.
4. What this position implies: The burden of demonstrating that an alternative is measurably less painful and more reliable rests on the challenger, not on the State.

What did the Court leave open?

1. No permanent closure: The bench stopped short of treating the question as settled forever.
2. The ground for a future challenge: Constitutional law evolves, and a future challenge may succeed if new scientific, medical or empirical material fundamentally alters the assumptions on which Deena was decided.
3. The executive route: The Court left it open to the Union government to examine alternative methods of execution should it choose to do so.
4. What this means in practice: The method now depends on the state of the evidence rather than on the age of the precedent.

What do other countries’ execution methods show about the search for a humane method?

1. Hanging’s reach: A 2012 Cornell Law School database identified 60 countries that authorised hanging as a method of execution, concentrated in jurisdictions influenced by British Common Law, including India, Singapore and Japan.
2. Lethal injection: The primary method in several United States states where the death penalty is allowed and heavily used in China, administering an anaesthetic, then a paralytic, then potassium chloride, and frequently botched where venous access is compromised.
3. Shooting: Used in China, North Korea, Somalia and parts of West Asia, visually violent and traumatic for executioners, with proponents citing near instantaneous cardiac or neurological destruction.
4. Beheading: Carried out with a sword in Saudi Arabia, and reliant entirely on the executioner’s precision.
5. Nitrogen hypoxia: Recently introduced in the United States, using inhalation of pure nitrogen to cause asphyxiation without triggering the hypercapnic alarm response, the panicked sensation of suffocation, and criticised as insufficiently vetted and amounting to human experimentation.
6. The abolition trend: More than two thirds of the world’s nations, around 113, have ended the death penalty in law or in practice, according to Amnesty International.
7. The countervailing trend: A 2025 Amnesty International report recorded a 12 percent increase in executions over the previous year, so fewer states execute while those that do execute more.
8. The 2025 concentration: The countries recording the most executions in 2025 were Iran at 2,159 or more, Saudi Arabia at 356 or more and Yemen at 51 or more, with China’s total running into the thousands and not published.
9. What the comparison establishes: Every available method carries its own scientific and ethical controversy, which is why no alternative could be shown to be superior to hanging.

Major debates surrounding capital punishment and the method of execution

1. Retribution against reform: The claim that the gravest offences require the ultimate sanction stands against the claim that the state’s own conduct must not replicate the violence it punishes.
2. Deterrence unproven: The deterrent effect of capital punishment has not been empirically established, which weakens the principal utilitarian justification offered for it.
3. Two rulings in tension: Gian Kaur (1996) recognises a right to die with dignity within Article 21, while Deena (1983) holds that a method causing potential asphyxiation satisfies the same Article, and the present ruling resolves that tension in favour of the earlier precedent.
4. Judge centric sentencing: The rarest of rare test is applied unevenly across benches, which makes the sentence depend in part on the composition of the court.
5. Delay as cruelty: Prolonged delay in deciding mercy petitions has been held to be a ground for commutation, which converts the length of the process itself into a constitutional question.
6. Socio economic profile of death row: A disproportionate share of death row prisoners come from poor and marginalised backgrounds with inadequate legal representation, which raises an equality question under Article 14.
7. Irreversibility and wrongful conviction: The penalty cannot be corrected after execution, and acquittals in appeal after years on death row demonstrate that error occurs.
8. The evidence gap the present dispute turns on: No systematic post mortem study of executions in India exists, so both the State’s claim of no botched execution and the petitioner’s claim of prolonged suffering rest on foreign data.
9. Legislative expansion against judicial restriction: Parliament has extended the death penalty to more offences while the courts have narrowed the circumstances in which it may be imposed.

Challenges to ensuring a constitutional mode of execution

1. No Indian evidence base: India has no published forensic study of executions, so the constitutional question is argued on English data from 1882 to 1945. e.g. the 1992 study relied on by the petitioners examined 34 remains from England, not from any Indian prison.
2. Calibration depends on execution skill: The drop length must be computed for each individual, so the outcome varies with the competence of prison staff. e.g. the official drop tables in use derive from colonial era manuals rather than from contemporary biomechanical evidence.
3. Every alternative carries its own failure mode: No method has been shown to be reliably painless. e.g. lethal injection executions in the United States have taken over an hour where venous access failed.
4. Absence of monitoring: No independent medical observation or record of the execution process is published. e.g. prison protocols require the body to hang for 30 minutes without any requirement to record the time or cause of death.
5. Delay converts the sentence into a separate punishment: Prisoners spend years under sentence while appeals and mercy petitions are pending. e.g. the Supreme Court in Shatrughan Chauhan v Union of India (2014) commuted 15 death sentences on the ground of inordinate delay in deciding mercy petitions.
6. Unequal access to competent defence: The quality of representation at the sentencing stage decides who receives the sentence. e.g. mitigating circumstances are often not placed on record at all in trial courts, which the Supreme Court addressed in Manoj v State of Madhya Pradesh (2022).
7. Legislative expansion without sentencing guidance: New offences attract the death penalty without any accompanying sentencing framework. e.g. the death penalty was extended to the rape of a child below twelve years by the amendment to the Protection of Children from Sexual Offences Act in 2019.

Conclusion

The Court has held that hanging under Section 393(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023 remains constitutional, on the twin grounds that Deena (1983) has not been displaced and that Parliament reaffirmed the method when it enacted the new Sanhita. The scientific material placed before it was found insufficient to dislodge the assumptions on which the 1983 ruling rests, and no alternative method was shown to be superior. The petition is dismissed, but the question is not closed, since a future challenge may succeed on fresh scientific, medical or empirical material. The Union government has also been left free to examine alternative methods of execution should it choose to do so.

What is the rarest of rare doctrine?

1. About: The rarest of rare doctrine is the sentencing standard under which the death penalty may be imposed only where the alternative of life imprisonment is unquestionably foreclosed.
2. Rationale: It exists because the Constitution permits capital punishment while Article 21 requires that its imposition be exceptional, reasoned and non arbitrary, so life imprisonment is the rule and death the exception.
3. Where it comes from: Laid down in Bachan Singh v State of Punjab (1980), which upheld the constitutionality of the death penalty by a majority while confining it to the rarest of rare cases.
4. The named typology it rests on:
   • Aggravating circumstances: Factors relating to the crime, such as extreme brutality, premeditation and the vulnerability of the victim, which weigh in favour of the maximum sentence.
   • Mitigating circumstances: Factors relating to the offender, such as age, mental condition, socio economic background and the probability of reform, which weigh against it.
   • The five categories in Machhi Singh v State of Punjab (1983): Manner of commission, motive, anti social or socially abhorrent nature of the crime, magnitude of the crime, and personality of the victim.
   • The balancing requirement: The court must weigh aggravating against mitigating circumstances and record why life imprisonment is unquestionably foreclosed.

Laws Governing Capital Punishment in India

1. Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023: The procedural code governing trial, sentencing, confirmation and execution of the death sentence, which replaced the Code of Criminal Procedure, 1973.
2. Section 393(5): Directs that a person sentenced to death be hanged by the neck till he is dead.
3. Confirmation requirement: A death sentence passed by a Sessions Court has no effect until it is confirmed by the High Court.
4. Bharatiya Nyaya Sanhita (BNS), 2023: The substantive penal code listing the offences that carry the death penalty, including murder, waging war against the Government of India, and certain aggravated forms of rape.
5. Unlawful Activities (Prevention) Act, 1967: Provides the death penalty for a terrorist act resulting in death.
6. Narcotic Drugs and Psychotropic Substances Act, 1985: Provides the death penalty for repeat offences involving specified commercial quantities, made discretionary rather than mandatory after judicial challenge.
7. Protection of Children from Sexual Offences Act, 2012: As amended in 2019, provides the death penalty for aggravated penetrative sexual assault on a child.
8. Criminal Law (Amendment) Act, 2013 and Criminal Law (Amendment) Act, 2018: Extended the death penalty to repeat rape offences and to the rape of a child below twelve years respectively.
9. Army Act, 1950, Navy Act, 1957 and Air Force Act, 1950: Provide the death penalty for specified offences under military law, where the alternative method of shooting is available.
10. Prisons Act, 1894 and State prison manuals: Govern the conditions of confinement of death row prisoners and the procedure at the place of execution.

“[2023, GS2, 15 marks] “The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a constitution made for a progressive society”. Illustrate with special reference to the expanding horizons of the right to life and personal liberty.”