Does the 187th Report of the Law Commission of India recommending lethal injection render hanging under the Code of Criminal Procedure, 1973 unconstitutional?

No. Observations made in a Law Commission Report are simply recommendatory in nature. It may reasonably be presumed that the legislators and the policy makers considered the 187th report in its entirety and thought fit not to amend the mode of execution of death sentence in the newly drafted BNSS which replaces the CrPC, so the report cannot establish unconstitutionality.

Code of Criminal Procedure, 1973 — Section 354(5) — Bharatiya Nagarik Suraksha Sanhita, 2023 — Section 393(5) — Constitution of India — Article 21 — Hanging as the sole method of execution — Stare Decisis — Reference to a larger Bench — Constitution of India — Article 21 — Code of Criminal Procedure, 1973 — Section 354(5) — Validity of hanging as the only mode of execution — Held: Hanging as the only mode of execution of a death sentence stands settled by a three-Judges Bench in Deena and approved by a Constitution Bench in Shashi Nayar. A Bench of two-Judges has extremely limited scope of interference. (¶48, 51) Stare Decisis — Departure by a Bench of lesser number of Judges — Held further: Stare Decisis bars a Bench of lesser number of Judges from departing from a larger Bench’s ratio that has withstood the test of time. Only a significant constitutional development, legislative amendment or cogent scientific and empirical evidence justifies departure. (¶49) Army Act, 1950 — Navy Act, 1957 — Execution by shooting — Separate class of persons subject to military law — Held further: Statutes prescribing shooting operate in a distinct field and govern a separate class of persons subject to military law. They cannot test the validity of the mode of execution imposed upon civilians under the ordinary criminal law. (¶56) Law Commission of India — 187th Report — Recommendatory in nature — Mode of execution retained in the BNSS — Held further: Observations in a Law Commission Report are simply recommendatory in nature. The same mode of execution having been retained in the newly drafted BNSS, the legislature thought fit not to amend it. Writ petition dismissed. (¶61, 66)

One judgment a day. That's the whole habit.

Read the full text of RISHI MALHOTRA & ANR v. UNION OF INDIA — and get the Supreme Court's output as a five-minute daily read, with plain-language headnotes and the questions each judgment settles.

Free forever plan · 30 seconds · data stays in India