Mandatory death penalty for drug offences challenged in India

23rd June, Mumbai. The Bombay High Court admitted a petition challenging the constitutionality of Section 31 A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) that prescribes a mandatory death sentence for certain drug offences upon subsequent conviction. One of the most stringent laws in the country, the NDPS Act incorporated a mandatory death penalty in 1989 amidst heightened paranoia around drugs. Acknowledging the constitutional import of the issue, the Court sent notices to the Union of India and the Attorney General and assigned the matter for arguments.

In 2008, two persons were sentenced to death under Section 31A NDPS Act by Courts in Mumbai and Ahmadabad, respectively. Today, the Bombay High Court stayed the confirmation and appeal of the case before it, pending adjudication of the constitutional challenge.

The Indian Harm Reduction Network (IHRN), a registered consortium of NGOs working for humane drug policies, challenged the vires of Section 31 A NDPS Act calling it – arbitrary, disproportionate and excessive, which exacerbates the stigma and prejudice surrounding drugs as well as demonizes people involved with drugs including persons who use drugs.

Appearing for the IHRN, Anand Grover, Advocate drew the Court’s attention to the Supreme Court’s ruling in Mithu v. State of Punjab, (1983) 2 SCC 277 where a mandatory death sentence imposed upon persons convicted for murder while serving life imprisonment under Section 303 of the Indian Penal Code, 1860 was declared unconstitutional.

Conceived and drafted by the Lawyers Collective HIV/AIDS Unit, the petition contends that a mandatory death sentence is unlawful as it precludes judicial discretion, prevents individualized sentencing and denies the accused the opportunity to be heard on the question of sentence. These procedural requirements cannot be eliminated as they are important safeguards against arbitrariness in the criminal justice system.

Across the world, Courts have held that mandatory death sentences constitute cruel, inhuman and degrading punishment. In prescribing death for drug offences, India is joined by Brunei-Darussalam, Egypt, Iran, Kuwait, Laos, Malaysia, Oman, Singapore, Sudan, Syria, United Arab Emirates and Yemen. The commitment of some of these States to democratic principles and human rights standards is doubtful.

The petition also questions the appropriateness of a death sentence for drug trafficking, which does not constitute the “most serious crime” in international human rights law. In India, life imprisonment is the norm and death the exception for the offence of murder. But for drug crimes, which do not involve the taking of life, death is the norm, without any exception.

The matter is kept peremptorily for arguments on 16th September 2010. A copy of the petition and the order is available at www.lawyerscollective.org