On July 8, Lawyers Collective, a legal rights and advocacy organisation, wrote to the Punjab government, urging it not to bring in legislation to prescribe mandatory death penalty for drug peddling/smuggling. The government had recommend to the Centre that death penalty should be given to drug peddlers and smugglers. While making the recommendation, chief minister Amarinder Singh said drug peddling deserves exemplary punishment because it destroys generations. From the tenor of the recommendation, it appears that the government wants the death penalty even for first-time offenders.
In its communique, Lawyers Collective pointed out a number of grounds as to why the death penalty would be a grossly incongruent and harmful step – most notably because it would not act as a deterrent – and would be detrimental to the interests of the poor and vulnerable who peddle drugs and are also addicts. Introducing the death penalty would be “completely out of step with the current line of thinking on drug control, internationally and nationally”, the communique asserted.
The Centre is yet to respond to the government’s recommendation, but in case the response is positive and the Narcotic Drugs and Psychotropic Substances (NDPS) Act is indeed amended, it is likely to land into choppy legal waters.
The NDPS Act, vide Section 31A, already provides for the death penalty for drug peddling/smuggling. Initially, it was mandatory (as per the 1985 Act and its 2001 Amendment), but was challenged in 2011 before the Bombay high court by Lawyers Collective and the Indian Harm Reduction Network (IHRN), a consortium of NGOs working for humane drug policies. The court ruled against the mandatory imposition of death penalty, albeit, holding that the legislature had the capacity to prescribe whatever punishment it deemed fit. Thus, there was an inherent contradiction in the ruling.
In 2014, awarding the capital punishment for repeat offenders was made discretionary. The crucial issue here is not the death penalty, but mandatory death penalty, even for first-time offenders, as desired by the Punjab government. That makes the 2011 Bombay high court ruling relevant in the present context.
The Bombay HC judgement
Before the high court, the petitioners premised their arguments on Articles 14 and 21 of the Constitution. Article 14 deals with the fundamental right to equality before the law and equal protection of laws, while Article 21 gives every person the fundamental right to life and liberty.
Drug trafficking is not the most serious offence (does not cause death), which alone is considered when providing death penalty, the petitioners contended. Therefore, the government’s classification of it as warranting the death penalty violates Article 14, they stated.
In addition, consumption of drugs also does not cause death. Even if one is drug dependent, addiction itself does not cause death. A drug dependent person can recover from addiction through treatment, education, rehabilitation and social re-integration and NDPS provides for such measures.
As for Article 21, the petitioners asserted there was denial of procedural safeguards, amongst others, right of pre-sentence hearing. Further, the imposition of standardised mandatory death penalty betrays the well-established principle that sentencing must be individualised and ought to depend on the circumstances of the offence as well as the offender.
Similarly, the provision completely does away with requirement of recording special reasons by the court for imposing death penalty. The exercise of judicial discretion on well-recognised and established principles, which is the highest safeguard for an accused, is severely curtailed.
The high court found persuasive force in the arguments advanced against the mandatory death penalty and based its judgement by quoting a Constitution Bench of the Supreme Court in the case of Mithu, Etc. v State of Punjab (1983).
In that case, the constitutional validity of Section 303 of the Indian Penal Code was challenged. The said provision mandated that if a convict serving a sentence of life imprisonment commits murder, s/he must mandatorily be given the death penalty.
The court found this to be a violation of Article 14, because Section 302 provides a punishment of either death or life imprisonment for murder, while Section 303 only the death penalty. This classification between two categories of people who commit murder was found to be invalid by the court.
Significantly, in its judgement, the bench deprecated the legislature’s practice of bringing in legislation which took away the judicial discretion to decide. In cases where capital punishment is sought, courts decide on the basis of the gravity of the offence, after reckoning aggravating and mitigating circumstances in which the offence was committed and of the offender. Any measure to curtail judicial discretion would necessarily be harsh, unjust and unfair, the bench said.
As stated above, although the high court ruled against the mandatory imposition of the death penalty, it left it open for the legislature to prescribe whatever punishment it deemed fit. It was against this gap that the petitioners then appealed to the Supreme Court, but the government did not appeal.
The law was amended in 2014 to make death penalty discretionary. The petitioners then withdrew their Special Leave Petition when it came up for hearing in 2017.
Tripti Tandon of Lawyers’ Collective said although the matter was laid to rest after the 2014 amendment was brought about, it has got a fresh lease of life because of the Punjab government’s recommendation.
It remains to be seen what action the Centre takes and how it overcomes the hurdle of the Bombay high court judgement.