Mandatory death penalty for drug offences challenged

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June 23, 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

For a fuller discussion on death penalty for drug offences, see the

International Harm Reduction Association's reports - 'The Death Penalty for Drug

Offences: A violation of International Human Rights Law', 2007 and 'The Death

Penalty for Drug Offences: Global Overview 2010' at www.ihra.net

Tripti Tandon

Lawyers Collective HIV/AIDS Unit, India

www.lawyerscollective.org

e-mail: <tripti.tandon@...>